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

Doe dem. Busby v. Payne (1828) NSW Sel Cas (Dowling) 851; [1829] NSWSupC 42

costs, legal - ejectment - non suit


Supreme Court of New South Wales

Dowling J., 13 June 1829

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


[p. 178] [Where the lessor of the Plaintiff in ejectment signed the consent rule although the Crown was substantially interested in the result of the case, the Court ordered him to pay the Costs of a  nonsuit.][1 ]


Saturday 13 June 1829

For Judgment

Do dem Busby v Payne

Dowling J delivered the opinion of the Court. This was an Ejectment for certain premises situate in Cockle Bay[2 ]   At the trial of the cause the Plaintiff was nonsuited, the Defendant then proceeded to tax his costs, and having served the allocature upon the lessor of the Plaintiff he refused to pay the amount on the ground that he was merely an agent for the Crown and consequently not liable to pay costs.  In the Course of last term an application was made for an attachment against the lessor of the Plaintiff for refusing to pay the costs pursuant to the Masters allocature.  It was then suggested by the solicitor general that the ejectment having been nominally brought in Mr Busbys name but substantially [p. 179] for the interests and benefit of the Crown; no costs were allowable upon the general rule that the Crown neither pays nor receives costs.  The Court took time to consider the case, and is now of opinion that the Lessor of the Plaintiff is liable to the payment of Costs to the Defendant.  It may be true that the Crown interested in the land for which this ejectment was brought; but the Court in determining their question of costs can look only to the declaration in Ejectment and to the consent rule signed by the parties or their Attornies.  The declaration in Ejectment certainly does not show that the Crown is Interested how can we get over the terms of this consent rule?By that rule the lessor of the Plaintiff undertakes that if upon the trial of the "Issue a verdict shall be given for the Defendant for the Defendant [sic], or it shall happen that the Plaintiff shall not further "prosecute his said writ for any other cause than for not confessing lease entry and ensteo[?], then the lessor of the Plaintiff shall pay to the [p. 180] said Defendant costs in that case to be "adjudged".  The lessor of the Plaintiff having so bound himself there having been a nonsuit, it appears to us that the Defendant is entitled to the costs of the nonsuit.  It is a rule laid down in the Courts at home that neither the Crown, nor a party using the name of the King though suing for his own individual benefit, is liable to the payment of costs; but this is where the Kings name is used either for the benefit of the party with the Crown's permission  Here the name of the King does not appear upon the face of any of the proceedings, and therefore we are bound to grant the rule for an attachment.

Rule Granted



[1 ] See also Sydney Gazette, 16 June 1829.

[2 ] See also Busby v. Rowe, 1828.

Published by the Division of Law, Macquarie University