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Decisions of the Superior Courts of New South Wales, 1788-1899

Short v. Berry and Woolstencraft (1828) NSW Sel Cas (Dowling) 487; [1828] NSWSupC 38

Mareva injunction, injunction, partnership, detainers

Supreme Court of New South Wales

Banco hearing, 28 May 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 163]

[Injunction refused to restrain a mercantile firm in Sydney from exporting goods supposed to be part of the proceeds of the capital belonging to Plaintiff formerly a copartner with one of the Defendants]


Short v Berry and Woolstencraft

28 May 1828

Rowe moved for an injunction to restrain Merchants of Sydney named Berry Woolstencraft from sending certain good and merchandize way from the Colony under the following circumstances.

About 20 years since W. Short had embarked in a mercantile adventure with Mr Berry as copartner [p. 164] with the latter   A ship was freighted to the Cape of good Hope with the property of Short.  The ship was supposed to be lost and no account had been rendered by Berry to his copartner of the fruits of the adventure.  Since then Berry had become partner with Woolstencraft as merchants in this Colony.  A short time since Short came to this Country and sued Berry for money claimed to be due to him as he had to receive on account of the adventure.  It was then agreed that the accounts should be referred to arbitration and delays in the proceeding, the last arbitrator made an exparte award that Berry was debted to Short in the sum of 73.000£ this award was set aside and the question again referred to other arbitraters, who had not yet had any meeting upon the case.  Berry & Woolstencraft had lately shipped goods as Merchants to the Cape of Good Hope and England on board the Cape Packet and the Brig Lion which was now in the [p. 165] point of sailing and therefore the object of this application was to restrain them from so sending the goods away, on a suggestion that they were purchased with the money due to Mr Berry.

The Court however said that such an application could not be granted for it went to restrain merchants from carrying on trade without any suggestion that they were unable to meet their demands.  It was a motion of the first impression; and in violation of all principle[1 ]

Rule Refused


[1 ] Until the permanent Supreme Court took effect in 1824, the colony had a detainer system which restrained debtors from leaving until they received a clearance from the Judge Advocate's office.  Chief Justice Forbes continued the practice for some time after then, but had doubts about it: "This expedient as your Excellency will perceive was intended to be temporary and only to be continued until there should be a legislature in the Colony - it was adopted rather in compliance with the wishes of the Colonists than from any opinion of its utility - for in effect it gives a great deal of trouble to transient persons as well as to this Office and affords to real protection to the Creditor - it is besides an unauthorised measure and had been complained of openly in the Office as unlawful."  He proposed to the governor that the Governor's Order on which the practice was based should be revoked and the matter put before the Legislative Council.  Governor Darling was offended that Forbes, without the consent or knowledge of the governor, subsequently directed the Registrar of the Supreme Court to cease issuing clearances: Forbes to Darling, 7 February 1826, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 68, 97.  Forbes apologised for any discourtesy involved in this, and said (at p. 99) that ``Your Excellency is aware that a Government order affords no authority to the Supreme Court. To my letter I never received any answer and I was consequently led to assume that the practice of requiring certificates from the Supreme Court preliminary to a Clearance at the Secretaries office would either be immediately legalised by an Act of the Legislature, or discontinued as unavailing."

On ne exeat regno, a similar equitable remedy, see In re Mahony, 1828.

On the refusal of a remedy of this kind, see also In re Raine, 1830.

Published by the Division of Law, Macquarie University