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

In re Raine [1830] NSWSupC 23

Mareva injunction

Supreme Court of New South Wales

Stephen and Dowling JJ, 31 March 1830

Source: Australian, 2 April 1830

 

On the equity side of the Court, Mr. Sydney Stephen moved that a writ of injunction be issued to restrain Mr. Thomas Raine, of Sydney, merchant, from sending the schooner New Zealander out of the port, and likewise to restrict the sale of 16 tons of flax, and some timber on board that vessel upon the ground that she was mortgaged to Mr. W. Macdonald, also of Sydney, merchant, that payment of the mortgage would fall due, and that plaintiff had given up all his right and title to the vessel to said McDonald.[1 ]

Mr. Wentworth on the other side contended, that Mr. Raine had not given up his right of property to the vessel in question - and that the cession of that right depended altogether on discharge or non-discharge of the mortgage, which yet wanted a length of time of being foreclosed.  How then was his client to be restricted from making use of his own property meanwhile, because bills of his happened to be outstanding, which as yet were none of them due.

Counsel on both sides being heard, the Court came to a decision that reasons were not shewn for the injunction prayed for - that the Court would not control a party from making use of his property, though that were in mortgage, the mortgage not being due; and on the whole, that it would be highly improper and unjust to tie up Mr. Raine's hands, and restrict him from making fair use and profit of his vessel.  The rule was accordingly refused.

 

Notes

[1 ] Raine's was often before the court over his financial difficulty.  See also Australian Company (Browne) v. Raine, Australian, 14 April, and 18 June 1830; James v. Raine, 1830; Raine v. McQuoid, 1830.

On the refusal of a remedy of this kind, see also Short v. Berry and Woolstencraft, 1828.

Published by the Division of Law, Macquarie University