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

Girard v Terry [1832] NSWSupC 37

tenancy - insolvency - reception of English law, bankruptcy

Supreme Court of New South Wales

Dowling J., 5 June 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 69, Archives Office of New South Wales, 2/3252[1 ]


[p. 41]

Precis of Case.

By an agreement for a lease for 3 years of the 8th May 1830.  The deft let to plf a house, then recently occupied by a Mr. Pittman in Geo. St, at the rent of 260£ per annum payable quarterly.  The plf was to be let into possession on the 10th May to erect certain ovens and other conveniences, but the rent was not to commence until 1st June 1830.  The agreement contained the following stipulation "House and premises being put into repair".  At the time the house was taken, one of the outside walls bulged considerably out of the perpendicular - had been condemned in Gov. Macquarie's time, and was notoriously unsafe for the last 19 or 20 years.  After the plf was let into possession, he, plf on 5th June 1830 wrote to the Deft, complaining of his delay in not proceeding to repair the work, and inclosing him a schedule of items of repair required by him to be done in pursuance of the agreement, amounting by intimation to £66.19.0, and notifying that if these repairs were not done forthwith, he would set his own men to work on Tuesday the 8th June 1830. - The deft not having commenced the repairs after this notice, the plf employed his own people and the repairs done amounted to abt. 80£.  On the 26th January 1831 an execution was put into the plf's house, when the Deft as landlord put in a claim for rent then due, amounting to £173.6.8, which was paid by the plf's brother in law.  Upon that occasion the deft & plf mutually agreed that the claim of the latters of £80 for repairs should be referred to arbitration, each party to name his arbitrator, subject to one pirage, & that whatever sum should be awarded, should go in reduction of the accruing rent.  The Deft named his arbitrator, but the plf neglected to name any person on his behalf.  Whilst the negotiation was going on for a reference of the claim of 8th, namely in March 1831 the outside wall of the house tumbled down, but was built up again by the deft at his own expense and in consequence of this, the house as was alleged became uninhabitable.  The plf sought to make this a subject of reference under the agreement of January 1831, but the Deft refused, & the present action was brought.  Since January 1831 no rent had been paid, except by distress, and the Deft had always left in plf's hands sufficient to satisfy the sum claimed under the original agreement of 8th May 1830.

I told the assessors that, the plf's right of recovering a verdict must depend upon the meaning of the original agreement to let, of the 8th June 1830.

That agreement must be read according to the understanding of the parties at the time it was executed.

The agreement was to put the house & premises into repair.

What repairs were there then required to be done, according to the knowledge and understanding of the plf? - He sends in an estimate of 66£ odd, but not being done as quickly as he desires, he employs his own work people, who make the repairs amount to 80£.  Suppose the Deft at that time had p.d the 8th without objection  I apprehend that the terms of the agreement of the 8th May 1830 would have been satisfied, and the falling of the wall in March 1831 would, if any, have been a new cause of action, & then it would have become a question whether the landlord was liable to rebuild the was under an agreement for a lease to contain the usual covenants between landlord and tenant.

Then does the circumstance of the deft not paying the 80£ immediately make any difference as to his present liability in this action? - I apprehend not.  Before the wall falls, it is mutually agreed to refer the sum of 8th claimed by plf to arbitration, & that the sum awarded should be deducted from the accruing rent.  From this agreement the plf flies, although the deft has named his arbitrators.  The rent in the mean time runs on, & there is always enough left in the plfs hands to satisfy the disputed claim about the 80£, which was the only matter of claim before the falling of the wall.  The falling of the wall was apparently an unforeseen, consequence, & I apprehend, gives rise to a distinct & separate cause of action (if any) not flowing out of the original agreement & therefore all the consequential damage complained of, forms no matter for your consideration in the present action.

If the rebuilding of the bulging wall was originally in contemplation between the parties, then the first agreement would not have been satisfied by the payment of the 66£ - or the 80£.  The plf appears to have taken the house with full knowledge of the infirmity of that wall, for it is sworn that it was notoriously unsafe, & with this knowledge, he himself stipulates for no more repairs that are contained in the schedule for 66£, & afterwards demands 80£ as the utmost amount of his claim for repairs, which the deft agrees to pay out of the accruing rent provided that sum shall be awarded upon a reference mutually agreed upon.  It has been agreed that this latter agreement amounts to an accord with satisfaction because the deft has left rent enough in the plf's hands to satisfy the claim for repairs, provided the original agreement to let can be construed to include no more repairs that those stipulated for by the plf himself.  If you are of opinion upon the evidence, that the parties never thought of the wall until after the agreement to refer took place, then I am of opinion in point of law, that that agreement coupled with the other evidence does amount to an accord with satisfaction.  The agreement between the parties must be interpreted by their own understanding of it, evidenced by the acts which I have pointed out to your attention.

With respect to the plea of insolvency it is hardly necessary to direct you upon it, as the case mainly depends upon the view I have taken of the case upon the merits; but as at present advised, I should say that as this is a cause of action arising before the insolvency, it may be brought either in the name of the Insolvent or the trustees, for whatever damages he may recover, will fall into the general fund for a [?] distribution amongst creditors.

As to the plea of set off, that hardly arises in a case like this, which is founded in tort for unliquidated damages, & is not the subject of estimate by comparison with any claim which the deft may have for rent.


Supreme Court of New South Wales

Forbes CJ, Stephen and Dowling JJ., 17 July 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 70, Archives Office of New South Wales, 2/3253


[p. 89]


Dowling J.

The material question reserved for consideration in this case is, whether the plfs insolvency, and assignment of his estate and effects to trustees for the benefit of creditors, may be pleaded in bar to a cause of action arising before his Insolvency.  This question was raised by the pleadings at the trial before me, and if the defendant had rested upon that point in limine, I should have given it more consideration than I then did, but the deft having chosen to go largely into the merits of his case, upon the numerous other points arising upon the pleadings, and presuming from thence that he did not mean to rely very strongly upon the plea of insolvency, I thought the most convenient course was [p. 90] to let the whole case be fully gone into, rather than have the plf turned round upon an objection of this kind.  Understanding at the trial, that this was an action on the case, ex delicto (for so the complex declaration put upon the files of the Court treats it) I was upon the first, impression inclined to think that the action was well brought in the absence of any proof of objection on the part of the Trustees.  Upon the merits of the case, I am by no means satisfied with the verdict & I think I ought to have directed a nonsuit, instead of allowing the case to go to the assessors.  However, it is now necessary to consider that part of the case, as we are now to determine the [p. 91] preliminary objection, which goes to the whole action in its present form, namely whether a certificated insolvent debtor can maintain an action of this kind in his own name, upon a cause of action arising before his insolvency.

The declaration in this case affects to be in case, but it is really and I substance no more than assumpsit for the breach of an agreement.  The whole cause of action clearly arises out of matter ex contractu, namely, an agreement for a lease, for the alleged breach of which is not doing certain repairs, the plf seeks a compensation in damages.  But whether the cause of action be ex contractu, or ex delicto, it appears to me, that upon all the authorities, we are bound to hold that the plea of insolvency and assignment to trustees, is a bar to the present action.

By the local ordinance under which this plf was declared insolvent the legal interest in all his estate [p. 92] and effects of what nature or kind soever is vested in his trustees.  We have already held in several cases, that the late, as well as the former insolvent laws of this colony is to be construed inpari materia with the Bankrupt law of England so far as the principles of the latter can be made applicable to the determination of cases of insolvency in this Colony.  Now there is no doubt that the statutes relating to Bankrupts, pass to the assignees all rights of action, real as well as personal, and every species of right of which by any possibility profit could be made; for though rights of action are not assignable at common law, & the statutes use the expressions "such right &c as the bankrupt may fully depart with all" yet the policy of the bankrupt law [p. 93] requires that such rights should be transferred as much as any other species of property.  Cullen 176. 2st. Bl. 444.  All the authorities agree in holding that in the case of the bankruptcy of a person, who is beneficially as well as legally interested in the performance of a contract made before the act of bankruptcy, the action should be brought in the name of all his assignees.  Eckhart v Wilson 8 T.R. 140.  Kitchen v Bartcsh 7 East. 68.  Bristow v James 7 T.R. 259 & Brandon v Pate 2st. B. 308 - which last was the case of money lost at play.

Regarding the present action as arising out of matters of contract, it is quite clear that the Trustees only, upon the principles of the Bankrupt law, could have brought this action.  The cause of action arises wholly before the insolvency, for the plf was not declared insolvent until after the wall fell.  But even supposing the plf had commenced this action before his [p. 94] insolvency, although the action would not ipso facto abate, because the trustees might proceed in his name, yet still according to Kimean v Tavraul 15 East 622.  The objection may be taken advantage of, as in this case, by a plea of the plf's insolvency and assignment of effects to trustees.

But assuming that we are bound to regard this as a cause of action arising out of matter ex delicto, still it appears to me that the pleas of insolvency is a bar to such an action as this, in the name of the Insolvent.  There is no doubt whatever that for torts to the person, or personal rights of the insolvent, which are not the subject of property such as assaults, slander, seduction of daughter & servants, criminal conversation with wife & the Insolvent himself may sue [p. 95] without the intervention of his trustees.  It is true that a bankrupt may sue in Trover against a stranger for goods acquired by him after his bankruptcy - Webb v Ton. 2 HB. 396.  In the report of that case, the [?] that the property was acquired after the bankruptcy, was specially pleaded by the Bankruptcy replication, and all that the Court there held was, that under such circumstances he had such a special property in the goods as would enable him to maintain trover against a mere wrongdoer, but without such fact appearing by pleading, the Defts plea of plf's bankruptcy would have been a bar.  It is also true that in the case of Clarke v Calvert 3JB Moore 96. 8 Taunt. 427. the G.P. held that an action of trespass is maintainable by a tenant from year to year, who had become bankrupt after the committing of the trespass, and before the commencement of the suit [p. 96] and the right of such action does not pass to the assignees by the assignment unless they interfere, as the bankrupt may sue as a trustee for & has a good title against all persons but them.  All the cases upon this subject are noticed and commented upon, but the ground of the decision in that case was that beingtrespass quare clausium fregit, - a possessory action, and the possession of the [?] ground, beingdefacto in the bankrupts at the time of the trespass, it was necessary that the action should be brought by the bankrupts, in as much as it could not be averred and proved, that the assignees were ever in possession.

I have carefully considered all the cases bearing upon the question, & I am  [p. 97] of opinion that viewing this cause of action in either way, as matters arising ex contractu or ex delicto, the plea of insolvency and assignment to trustees is a bar to an action of this kind in the name of the Insolvent plaintiff, in the absence of anything to shew, either by pleading or evidence that the trustees had abandoned their vested right to sue.

Rule absolute.

Forbes C.J. & Stephen J. concurred.[2 ]



[1 ] The full minutes of this case run from p. 40 to p. 91.  This report is based on what Dowling called a "Precis of Case."

[2 ] A motion was made for a new trial, but refused: see Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255, p. 76.

Published by the Division of Law, Macquarie University