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

Cooper v. Terry and Another (1828) NSW Sel Cas (Dowling) 59; [1829] NSWSupC 48

injunction, contract - contract, defence of public policy - contract, equitable defence - partnership

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 30 June 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462


[pp 210-211] [Injunction granted before answer to Bill to restrain a party from receiving a certain sum of money from the D.  Commissary General under a contract to supply meat where the contractor had agreed with two other persons to supply cattle for the Contract, on a suggestion that one of the latter persons would be damnified, although no subpoena or notice had been served on the other side.  Issue whether an agreement between a Government contractor and other persons to enable him to supply the means of performing his contract, where there was to be a division of profits between the parties is void as against public policy?]

[p. 210]

Tuesday June 30th 1829

Coram Forbes CJ

Dowling J

Cooper v Terry & or


On the 6th June the Court granted an injunction to restrain the Defendants from receiving a certain sum of money from the Deputy Commissary general under a certain meat contract in which the whole of the parties were jointly interested.  Dr Wardell now moved to dissolve the injunction on the ground that it had been improvidently granted without a subpoena, or any notice whatever to the other side contrary to the practice; and secondly that it was not a case in which the Court, on the merits ought not to grant an injunction, the transaction in question being founded in fraud, or at least against public policy.

[p. 211] The case was this.  James Wiltshire one of the Defendants had made a tender to the Commissary General for a supply of Beef, in his own name; and his tender being accepted, he entered into the usual contract.  In order to enable him to fulfill his contract, an agreement was entered into between him the Plaintiff and Samuel Terrys by which they agreed to share among themselves the profits of the contract, the Plaintiff Cooper and the Defendant Terry, to find the Cattle, and Wiltshire to find the Slaughter house and labour in killing the Cattle.  Cooper and Terry severally supplied a great number of Cattle but Wiltshire as was alleged gave an undue preference to Terry in receiving more Cattle of his than of Coopers whereby the latter sustained great prejudice.  For breach of this agreement, Cooper afterwards sued Wiltshire and Terry at law, but was nonsuited on the [p. 212] ground that one partner cannot sue his copartner at law for the breach of an agreement entered into between them.  Cooper then filed a bill in Equity, suggesting fraud.  before answer and in order to restrain the Defendants from receiving the money from the Commissary General under the meat contract, which had been partly supplied by Cooper's Cattle, the latter obtained the injunction without subpoena or notice.

It was now contended on the part of the Defendant that the injunction ought not to have been granted without a subpoena or a notice & 16 Vez. 338. 1 Grant Ch Prae. 248. were cited.  Secondly, this is a case in which the Court will not grant relief or restrain Wiltshire from receiving the money, the transaction being founded in a fraudulent combination to execute a contract under certain specific terms at an advanced price for meat.  It is against [p. 213] public policy that two or three persons shall combine to execute a contract, entered into by one.  As respects the Government it has a tendency to defeat the very object of a tender, which is to the get the public supplied at the cheapest rate.

Wentworth in reply to the 1st objection cited 1 Maddox Ch Pr.126, as decisive to shew that in such a case as this the Court will grant an injunction until the answer comes in.  2nd there is nothing fraudulent or contrary to public policy in several agreeing to furnish one man with the means of executing a contract entered into by the latter in his own name.  If this objection were to prevail, it extend to innumerable transactions of mankind, where a division of labour, or combination of several agents is essential to the completion of an undertaking.

Forbes CJ.  Thought that the injunction ought not to be dissolved for the formal objection in as much as the affidavit on which it had been granted set forth the urgency and neccessity of the [p. 214] occasion in which case the practice as laid down in Maddox Ch.Pr.126. authorized the issuing for the injunction without subpoena or notice to the other side.  As to the objection to the transaction in question he saw nothing contrary to law or public policy in one person entering into the contract, and fulfilling it with the assistance of other persons.

Dowling J agreed with the Chief Justice as to the first point but forbore giving any opinion as to the legal effect of the supposed combination.

Injunction continued until Defendants answer comes in.

Published by the Division of Law, Macquarie University