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

Farrell v Howe (1831) NSW Sel Cas (Dowling) 857; [1831] NSWSupC 7

Courts of Requests - costs, legal

Supreme Court of New South Wales

Dowling J., 22 January 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 43] [Where there is a disputed account between parties exceeding 10£ in amount and the Plaintiff upon a final investigation in the Supreme Court recovers under £10.  Held that this would not deprive him of his costs under the Court of Request Act.]

January 22nd 1831

Farrell v Howe

This cause was tried before me.[1 ]  The Plaintiff sought to recover £51.2.0. but recovered only £5.19 and now Foster moved to deprive him of his costs under the Court of requests Act 10 George 4 No 3.s.7., and the Court after hearing Chambers held that the Court of Requests act extended only to a settled balance of account before action brought and not to a disputed act upon which the Plaintiff shall finally recover less than £10.

 

Notes

[1 ] This refers to Dowling J., as this was his notebook.

This decision was followed by Forbes C.J. and Burton J. in Phelp v. CohenSydney Herald, 25 October 1833.  Forbes held that the test was whether the Court of Requests would have had jurisdiction over the original claim.  If so, then costs could not be awarded in the Supreme Court.  He cited Lord Mansfield at 1 Taunton 60 as additional support for the point.  Justice Burton agreed in a separate judgment.  The same issue of the newspaper also reported Foster v. Biddulph, in which the same point was in issue.  The Australian discussed the issue at length, the editorial apparently being written by a lawyer.  (Foster v. Biddulph was in court again later in October, 1833: Australian, 28 October 1833.)

Published by the Division of Law, Macquarie University