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

Pendray v Dangar [1832] NSWSupC 45

taxing of costs - reception of English law - civil procedure, Court of King's Bench - costs, legal

Supreme Court of New South Wales

Stephen J., 26 June 1832

Source: Sydney Herald, 2 July 1832[1 ]


Pendray v. Dangar. - In this case, Dr. Wardell moved that plaintiff's bill of costs be referred to the master to review his taxation, on the following grounds: - This case had been tried twice before the Court, and in both cases plaintiff had obtained a verdict, but when the bill of costs came to be taxed, the master had taxed off the whole of the cost incurred by the first trial, thereby saddling plaintiff with the costs for trial in which he had been successful.  This, continued Dr. Wardell, is in consonance with the practice of the Court of King's Bench, but not in the Common Pleas, or had it been the practice of that Court, in fact, there were instances where a contrary course had been adopted.

Mr. Foster, not only opposed the motion, but moved that the master should be directed not to allow any costs in either case, at all events, not in the first trial, for the verdict being thirty shillings, the plaintiff was not satisfied with it, and therefore got the verdict set aside himself, it was done on his own motion, and, therefore, in accordance with the practice and spirit of the Common Pleas, he was not entitled to any costs.

In the second case, plaintiff sued for £3 19s. 6d., the case was one, therefore, that fell within the Court of Requests Act, there was no set off, the demand was all on one side, and the verdict being under £5, clearly came within the provisions of that Act, which was intended to prevent litigation.  The criterion to be guided by, was what he recovered, even when a greater sum was sued for.

Dr. Wardell, in answer, observed, that on the second point, Mr. Foster was in error in the putting and the law; the case in point had been settled in that Court on a former occasion.  Even when the verdict was 40s. they would be entitled to costs unless the Judge certified under the Statute of Elizabeth.  He therefore contended that, on the practice of the Court hitherto established, and on the practice of the King's Bench - for there were items in the bill which had been struck out, that even that Court allowed - the bill should be referred to the master to be reviewed.  As to Mr. Foster's motion, he considered there was no ground for it.

Judge Stephen informed the Bar, that the indisposition of the Chief Justice would prevent his attendance until the 5th July, and as the motion now before the Court would effect the practice in future, they would wish to have the assistance of his advice before giving judgment.  The case would therefore lie over till he could attend.[2 ]


Dowling J., 17 July 1832

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


[p. 198] This was an action of assumpsit for a tailors bill.  The cause was tried twice.  On the first trial the plf had a verdict for the sum of £1.10.  The Court afterwards granted a new trial upon the application of the plf himself.  On the second trial he sought to recover £18.6.6.  The Deft paid £4.2.6 into Court, & the plf had a verdict upon that second trial for £3.19. - [?] the sum of £4.2.6 paid into Court.  The master upon the taxation of the plf's bills of costs on both trials, disallowed the costs of the first trial though the plf was successful in both.  On a former day in this term cross motions were made by the plf & deft respectively.  On the part of the plf a rule was moved calling upon the master to [p. 199] review his taxation of costs & allow the costs of the first trial as well as those of the second, agreeably to the practice of the court of Common Pleas at Westminster, & the tacit usuage of the office of the Supreme Court of N.S.W.  On the part of the Deft, a rule was sought to deprive the plf not only of the costs of the first trial, but also of the second on the ground, that having recovered less than 10£ he was entitled to no costs by virtue of the Court of Requests Act of Council.

It appears to us that the application on the part of the plf is untenable.  The rules of practice on the common law side of this Court, are framed agreeably the New South Wales Act, - the Charter establishing the Court, & the order in Council dated 19th October 1824. exclusively upon the practice of the Court of King's Bench at Westminster.  To those rules, which have now become inveterate by the authority of an act of Parliament we must adhere.  By the admitted practice of the [p. 200] Kings Bench at Westminster the costs of the first trial in a case circumstanced as this is, would not be allowed & restrained as we are by the now settled rule in this respect, & I do not see how we can depart from it.  In the Common Pleas, the rule certainly is otherwise.  But our rules of practice not being founded upon those of that Court, but exclusively upon those of the Kings Bench, I think we ought to adhere to the rules of the latter Court.  If any usuage to the contrary hast tacitly grown up in the late Masters office I think we are now bound to correct it, for no usuage can legitimately control an act of Parliament.  The point being thus pointedly brought under our consideration, we are bound to hold that the master has correctly acted [p. 201] in disallowing the Costs of the first trial.  Whether the plf shall be deprived of his costs altogether of the second trial by operation of the Court of Requests act is another matter.  That question must be determined by the point whether the plf could have recovered in the Court of Request, the sum which he actually sought to recover.  The plf sought to recover £18.6.6.  Now if it appeared to the commissioner that he sought to recover more than ten pounds he would not take urging over of the demand.  Here the plf bonâ fide sought to recover more than 10£ and although he failed to prove the whole of his demand, from a mere failure of proof, & not from distinct non liability of the Deft, it appears to me that it is not a case within the local ordinance.

[p. 202] The construction to be put upon this part of the local ordinance has been twice before the Court.  The Court has held that where a party bonâ fide seeks to recover more than 10£ but upon a full investigation of his claim records less, he is not to be deprived of his costs.  Both rules therefore in this case must be discharged. -


Forbes C.J., Stephen and Dowling JJ, 29 September 1832

Source: Sydney Herald, 1 October 1832[3 ]


In re Macquoid v. Dillon, and Pendry v. Dangar. - In these cases, which had been twice before the Court, a motion was made and argued last term, calling upon the Court to order the Master to tax the costs of both trials, according to the practice of the Court of Common Pleas in England, and has had been adopted in other cases by the Master.

The Chief Justice delivered the opinion of the Court.  In these cases the Court was called upon to order the Master to tax the costs of both trials, in opposition to, and contradiction of, an Act of Parliament under which the Rules of Court were framed.  They considered themselves bound down by the Act of Parliament; whatever errors had crept into the Master's Office, was not to be taken as an authority.  The Act of Parliament especially enacts that the Rules and Orders of the Court shall have the same effect as if inserted in the Act itself, then how could the errors of the Master's Office be considered binding on the Court.  When the Rules of the Courts of King's Bench and Common Pleas were at variance, the Act provided those of the King's Bench should be invariably followed.  The plaintiffs failed in the first suit, and succeeded in the second; but that did not come within the meaning of the rules cited, as appertaining to the common Pleas.  The Court were therefore of opinion, that the costs of both trials should not be taxed by the Master. - Motion refused.



[1 ] On this case, see also Australian, 15 June 1832; Sydney Herald, 11 June 1832.  The action was for a tailor's bill of £14 4s.  For the judge's record of the trial, see Dowling, Proceedings of the Supreme Court, Vol. 69, Archives Office of New South Wales, 2/3252, p. 117.

[2 ] The Sydney Herald, 19 July 1832, reported the result as follows: "A motion, calling upon the master to revise his taxation, was discharged."

[3 ] See also Australian, 5 October 1832.

Published by the Division of Law, Macquarie University