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

Rapsey v Singleton (1832) NSW Sel Cas (Dowling) 472; [1832] NSWSupC 26

fieri facias - sheriff, fraud by - taxing of costs - Williams River

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 29 March 1832

Source: Sydney Gazette, 31 March 1832[1 ]

In Banco.

The Chief Justice and Mr. Justice Dowling sat this day to hear motions. Mr. Justice Stephen was absent, owing to indisposition.

Rapsey and Mitchell v. Singleton.

In this case a rule had been obtained on a former day, calling upon the Sheriff to shew cause why a sale, under execution, of a certain mill and farm situate on Williams's river, should not be set aside on the ground of fraud ; and why he should not also pay the costs of this application. The rule nisiwas granted upon the following statement, supported by several affidavits:- A judgment for the amount of £150, or thereabouts, had been obtained by the plaintiffs against the defendant, to satisfy which, as well as the other claims, the property in question was taken in execution, and advertised for sale by the Sheriff, so for back as the 18th of February, 1830. It also appeared from the affidavits in support of the rule, that the defendant called upon Messrs. Hughes and Hosking, merchants in Sydney, after the sale was announced by public advertisement, and offered to mortgage the property to them if they would assist him in getting out of his difficulties. Hughes and Hosking, - or Mr. Hosking, on behalf of himself and partner - said in reply, that they did not like to lend money, particularly on property with which they were unacquainted; but told the defendant to state what rent he could afford to give, and they would attend and bid for the property. The defendant, after some demur, said, "he knew the mill and what she could do, as he built her himself," and would rent it and the land at £100 a-year. In consequence of these negotiation, it was alleged that, at the request of Messrs. Hughes and Hosking, or one of them, the Under Sheriff (Mr. Prout) postponed the sale from the 18th of February till the following day, upon an understanding that they (H. and H.) were to buy in the property for the benefit of the defendant, and arrange his affairs. In the mean time, Mr. Hosking waited upon the plaintiffs, informed them of his intention to purchase the property for the benefit of the defendant, and agreed to satisfy their judgment by a bill at six months. On the 19th the sale took place, and the property was sold to Messrs. Hughes and Hosking for £105; owing to the general understanding that it was bought for the benefit of defendant, in consequence of which may persons refrained from bidding - one of the affidavits (that of Mr. M'Donnell, of Pitt-town) stating that, but for the general understanding which prevailed, that the property was to be bought in for the benefit of the defendant, the deponent would not have let it go for £500. Mr. Mitchell, one of the plaintiffs, also swore that, had it not been for the representation of Mr. Hosking, he would have attended the sale, and gone as high as £400. There was also the affidavit of Mr. Prout, stating, that not only he considered it a sham sale, and that Messrs. Hughes and Hosking bought it in for the defendant, but that such was notoriously the opinion of all present, in consequence of which persons refrained from bidding. The plaintiffs' claim still remaining unsatisfied - or, as stated in the affidavit of Mr. Mitchell, he and his partner having been "amused" by Messrs. Hughes and Hosking up to the time the present application was made to the Court.

The Solicitor General (with whom was Mr. Therry and Mr. Foster), in showing cause against the rule, read the affidavits of Mr. Hughes, Mr. Hosking, and others, negativing the asssrtions [sic] on the other side - the two first-named deponents stating that they were entreated by the defendant to become the purchasers, on the understanding that he was to rent the property at £100 a year - that they knew nothing of the sale till the morning of the 19th -  never applied to the Under Sheriff to put it off - and that they verily believed the defendant had himself, by mixing up their name in false representations of his own, induced the Under Sheriff to postpone the sale - and that, upon a remark made by the defendant, that they had "got a good bargain," they offered at he expiration of a seven years' lease, at £100 a year, and a return of the purchase-money, to restore the property to him. An affidavit of Mr. Unwin, the solicitor for Messrs. Hughes and Hosking, was also put in, stating that Mr. Prout, when applied to by him, on the subject of his affidavit, admitted that he was mistaken as to the conversation with Messrs. Hughes and Hosking, with respect to putting off the sale, which he now thought had been done at the instance of the defendant. The Solicitor-General, therefore, contended, as it was clear from his own admission, that Mr. Prout was mistaken in so material a part of his affidavit, that the Court must leave it entirely out of consideration in this case, even if it could be received under any circumstances ; seeing that its direct tendency was to implicate Mr. Prout himself in an alleged fraudulent transaction. Upon the other parts of the case, he contended that no fraud had been shown on the part of the Sheriff, to entail upon him the consequences of granting the present application - that the sale of Messrs. Huges [sic] and Hosking, whose interests he represented, was bona fide, and that no ground whatever had been shown for setting it aside. With respect to the inadequacy of price, which, no doubt, would be relied upon on the other side, although he contended that was a question with which the Court had nothing whatever to do, in this form of proceeding, he was prepared with the affidavit of a most respectable merchant of Sydney (Mr. R. C. Pritchett), who stated that he was acquainted with the property in question - that the mill was constantly liable to be swept away by floods - but that he would have become the purchaser had the bidding not exceeded £100, which he considered to be the full value of the property. For these reasons the learned counsel submitted that the rule must be discharged.

Mr. Therry followed at considerable length on the same side, contending, even if the Court could be induced to disturb the sale after such a lapse of time, when the property might have passed through so many hands, and had so considerably increased in value, by the introduction of steam into the colony, owing to which the settlers on the Hunter and Williams's River had a greater facility of bringing their produce to market than even the settlers on the Hawkesbury, not forty miles distant, that no ground whatever has been shown to sustain the allegation of fraud, or of sufficient weight to affect the interests of his clients, Messrs. Hughes and Hosking.

Dr. Wardell replied at consideration length, and was followed by Mr. Wentworth ; both the learned gentlemen contending that the case on the part of the plaintiffs was clearly established, even on the showing on the other side. The learned counsel dwelt particularly on the circumstance of a property purchased for £105, and leased for a £100 a-year, for seven years, at the expiration of which term, even the purchase-money was to be returned; as well as the fact that, although Mr. Prout admitted he was mistaken with respect to the putting off of the sale, he still swore he all along understood it to be a sham sale for the benefit of the defendant, and that it was so understood by the majority of those present, in consequence of which numbers refrained from bidding. The learned counsel contended, that the only question for the Court was, whether its process had been abused, to the injury of the judgment creditor? In this case it clearly had been ; because it was on the affidavit of Mr. Mitchell that he would have attended the sale and gone as high as £400, had he not been induced to refrain on account of the representations of Messrs. Hughes and Hosking.

The Court expressed its decided opinion, that without imputing any thing to Messrs. Hughes and Hosking, the case was one which called for its interposition to re-open the sale. Without imputing any intentional fraud to those gentlemen, it was clear, from all the circumstances of the case, that an opinion - not contradicted by them, although they had full opportunity to do so - had gone abroad, that the sale was merely nominal, and for the benefit of the defendant, and which opinion had prevented bidders from coming forward. The Court, however, did not come to a decision on that point. It clearly appeared that the Sheriff, from some cause or other - whether at the request of the defendant, or of Hughes and Hosking, had postponed the sale from the day originally appointed. This he had no right to do; and the Court, with regard not only to the justice of the case, but to its own honour, was bound to see that there was no abuse of its process. The Sheriff had no right to attend to any such suggestion from either party - he had admitted that the sale was a sham sale. By such a course of proceeding the judgment creditors, Messrs. Rapsey and Mitchell, had been ousted of their claims ; and the Court therefore considered that this was a case in which it had authority to interpose and re-open the sale by virtue of the power which it possessed, not only by its prerogative, but statutable jurisdiction to see that its process was not improperly exercises.

Rule absolute.

Counsel in support of the rule, Dr. Wardell and Mr. Wentworth : against, the Solicitor General, Mr. Therry, and Mr. Forster.

 

Forbes C.J. and Dowling J., 29 March 1832

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

 

[p. 165] The Court will on motion against the Sheriff set side a sale under an execution on the ground [p. 166] of fraud if their [sic] appears any privity between the Sheriff and the parties who have set him in motion.

 

Forbes C.J. and Dowling J., 29 March 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 67, Archives Office of New South Wales, 2/3250

 

[p. 102] This was a rule calling on the Sheriff to shew cause why the sale under an execution of the Defts Mill &c at Williams river to Messrs Hughes & Hoskins should not be set aside on the ground of fraud.

The case was this: - The Deft [p. 103] Singleton being indebted to Rapsey he took out execution upon his judgment, & the Sheriff advertized Singleton's mill for sale for a given day.  Singleton being otherwise embarrassed & wishing to avoid his mill being sold at a sacrifice obtained a letter of introduction from a friend of theirs to Merrs Hughes & Hoskins, as being persons who would advance him money befriend him & get him out of his difficulties.  He called upon H & H & they agreed to buy in the mill ( as was alleged (for his benefit.)  The Sheriff put off the sale for the next day without any fresh advertisement, upon an understanding that the Mill was to be bought in by Hughes & Hoskins.  Several persons attended the first day the property was advertised for sale, & would have bid for it to the amount of 4 or 500£. [p. 104] which was considerably less than its value, but quite sufficient to satisfy Rapsey's execution.  On the next day, Hughes & Hoskins bought in the mill at 100£ & many other persons would have bid to the amount of 400£ but from an understanding that the mill was bot[2 ] in for Singleton's benefit.  In the mean time H & H prevailed upon Singelton to become their tenant of the mill for 7 yrs at 100 £ per an. with power to take the mill gain at the end of the term he could repay the 100 £ together 10 percent interest.  There was evidence to shew that the undersheriff had mixed himself up with, & become part to this arrangement for [p. 105] postponing the sale, whereby Rapsey's execution was defeated.  The affidavits of both sides were numerous.

Per curiam This application is made against the Sheriff as an officer of this Court.  The Plf seeks to set aside the sale on the ground of fraud, whereby the Plf's execution has been defeated.  If it had appeared that the Sheriff had not mixed himself up with & become privy to the transaction by which Hughes & Hoskins had become purchasers of the property so far beneath its true value, the Court certainly would not make him responsible, as a mere ministerial officer, who is bound to execute the process of the Court.  But is he free from blame in this transaction?  His own affidavit shews that he has travelled out of his dry ministerial duties, & has more [p. 106] or less lent himself to a proceeding which has been made the means of working a fraud.  Then as he is rightfully brought before us as part; the next question is whether there is sufficient of legal fraud & want of bonâ fides as to warrant us in holding  that this sale was fraudulent.  Can we collect from the whole of the affidavits on the one side & the other that the sale of this mill did not produce its fair and marketable value, in consequence of an understanding that the property was bought in at 1/7th its value in order to arrange Singleton's affairs.  Now look at the facts: - Singleton in the middle of his difficulties is introduced by a common friend to Hughes & Hoskins as [p. 107] persons who can befriend him in arranging his affairs & compounding with other creditors.  They undertake so to do.  At their suggestion the Sheriff is induced to postpone the sale from the day it was advertised for, & no regular notice of postponement if given.  Several persons who attended on the first day, with a bona fide intent of bidding for the property, & they go away. On the next day, some how or other the persons attending the sale were induced to believe that the sale was to be then friendly - That H & H. are to buy in for Singleton's benefit.  The circulation of this report is attributed to Singleton himself, but can it be doubted that he did so, with the faith & belief that H & H were really to be his friend [p. 108] on the occasion.  On the second day nobody bids - but Hughes & Hoskins, & property worth at least 500£ is knocked down to them for 100£.  Believing then as we do from the facts of the case, that the sale was not that fair & open transaction which the law requires in such cases, & that the cause of the irregularity in the sale arose through the contrivance of H & H & that the sheriff had suffered himself to be made their instrument in perfecting their fraudulent intention to get the mans property at a low value into their own hands, we think the sale is so tainted with mala fides, that we [p. 109] are bound to make the rule absolute.  The subsequent conduct of these parties in manifest evidence of their fraudulent design.  For this mill which they bought in at 100£ they demand a rend of Singleton of 100£ & stipulating that at the end of 7 yrs he may redeem the property he paying them the purchase money together with interest.  Without going farther into the case, it appears to us that the case is so pregnant of fraud that we are bound to set the sale aside.

Rule absolute.

McDowell, Therry, Foster, Unwin for Hughes & Hoskins - Wardell & Wentworth for Plf.

 

 

Forbes C.J., Stephen and Dowling JJ, 1 June 1832

Source: Sydney Herald, 4 June 1832

 

Napthali v. Thompson.[3 ] Rapsey, and another v. Singleton. - In these Cases, Mr. Keith moved that the taxed Bill of Costs be referred to the Master to be reviewed.  In making this motion, the learned Gentleman observed, that great injustice had been done his clients, inasmuch as the Master had cut off the fees paid by them, although they were the successful party.  Fees of the first and second Counsel had been considerably reduced, while those of the third had been struck out altogether.  A variety of other fees had also been disallowed, and if the Court would not allow their officers such fees they could not appear respectable, and it was ten to one that they would do what would be dishonourable.

Judge Stephen. - You mean Mr. Keith, if they do not get what they wish, they will become rogues.

Mr. Keith. - Exactly so, their Honours would observe that he made this motion generally as it affected the honour of the Court and the interests of Clients and their Legal advisers; it could not be expected that professional Gentlemen would pay that attention to their clients which they would do when sufficiently remunerated.

Mr. Unwin objected to any revision of the bills of costs, as they had been taxed according to the established rule, at the same time he was satisfied they were quite inadequate,

Judge Stephen understood Mr. Keith's motion went to obtain a General rule in all cases, he could not consent to such a principle, as it would affect absent parties; he did not consider the Court were authorised to do.  He considered the case one of importance, and which might be brought before the Court in a more regular way.

The Chief Justice agreed with his learned brother, that if they were called upon to adjudicate a case not yet in esse, they would abstain from lying down any Rule.  He however did consider Mr. Keith's motion went to that point, but to revise a taxed bill of costs on the ground that the Master had rejected specific items which were allowed to be fairly chargeable between party and party.  The Court would defer giving any opinion on the motion until they had an opportunity of looking at the bills of costs and affidavits in the case.  They would take the motion as they found it, and give judgment on a future day.

Judge Dowling. - We ought to advise on the Case.[4 ]

 

 

Forbes C.J., 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. 156]

Rapsey et al v Singleton

Napthali

v Thompson}  Judgement delivered Tuesday 17th July 1832

Forbes CJ

& Stephen J

concurring

with me

 

In these cases rules were obtained calling upon the parties defts to their cause respectively why the Master shd not review his taxation of costs as between party and party.  In the case of Rapsey v Singleton, the original bill was 108 £ & the master taxed the same down to £32.11.8 & in the case of Napthali v Thompson the original bill was £ 62..18..7 which the Master taxed down to £41.16.3.

On shewing cause against these rules it was broadly admitted by the professional gentleman employed on that side that the costs & charges allowed by the master, were the proper & usual costs & charges [p. 157] allowed in such cases, though at the same time it was said that they were inadequate in a professional point of view. - We have been called upon to lay down a general rule for the guidance of the master n the taxation of costs in such cases, and it has been broadly contended, that wherever a party has been successful in any application in this court the unsuccessful party ought to pay all the costs which the successful party may think proper to incur in obtaining the object of his application. The main ground of objection to the master's taxation in Rapsey v Singleton is in not allowing the feel paid to all the counsel, three in number, retained on the cause for the Plf. - One topic forcibly pressed upon our attention was that unless professional gentlemen are liberally paid for the exercise of skill & labour in [p. 158] managing causes for their clients, it will be impossible to keep the profession respectable and that a [?] taxation of their charges would have the inevitable tendency to make them depart from that high tone of character which it is so desirable should be cherished amongst the members of this most honourable profession.  All men certainly must feel the deep importance of character in the professors of the law.  The public, the members of the profession themselves, and His Majesty's Judges, are all equally [p. 159] interested in this matter.  But we indulge a hope, that the discharge of the duty cast upon us by the wisdom of Parliament, in adjusting this delicate matter as it respects professional genius, will not, if fairly and discreetly exercised, have the slightest tendency to abate in any member of the Bar of Australia, that honourable tone of feeling & respect for character, which at present distinguishes the profession, even though the most rigid supervision should be observed by us in this part of out province as conservators of public justice.   Cheapness and celerity in the administration of justice to the King's subjects, were I apprehend primary points in the contemplation of the legislature in investing the Supreme Court of New South Wales.  The public of this colony, know, and I am persuaded duly appreciate, the exertions of the learned person who presides as [p. 160] the first Chief Justice of the Court, in endeavouring to attain these objects, but framing a series of rules of practice which relieve the suitors of the court, from that expensive machinery and that delay arising from cumbrous & complex forms, which are so much objected to in the administration of Justice in the mother country.  These rules not having been disallowed by His Majesty thus are to be taken as part of that Act of Parliament under which this Court is constituted.  In pursuance of the power thus given to the Court, the Judges by the rule No. have established a scale of fees & charges to be allowed in the ordinary administration of justice between party and [p. 161] party.  It would be impossible by any rule or resolution of Court to lay down a  scale applicable to every possible case arising in the diversity of proceedings of daily occurrence.  In cases unprovided for by specific rule, those whose province it is to tax bills of costs, must be guided by the usage and practice of the office, of the Supreme Court since it has been established, the consentaneous practice of the King' bench at Westminster in like cases, and the exercise of a sound & fair discretion with reference to the nature of the business done & the degree of labour & trouble cast upon gentlemen in the discharge of professional duty.  Most undoubtedly it is the province of the Court to see, if there be any ground of exception to the manner in which the masters discharges his duty, and to call upon him to review his taxation, if it [p. 162] should appear to us that justice has not been done in the premises.  For the purpose of exercising this duty we have carefully gone through the several bulls of costs in the two cases submitted to our judgment, and have examined the items which have been taxed by the Master & I confess I see no ground for saying that the master has improperly exercised the powers of his office.  Most undoubtedly the master from his long practical knowledge of the details of the office, is much more competent to form a correct judgement in these matters than the Judges, whose education, and habits, almost disqualify them for the business of taxing attorney's bills. - It must be observed that the bills in question are, not bills as between attorney & client, but between [p. 163] party and party.  In this discussion of these cases, I do not find that any if the items disallowed by the Master ought to have been allowed by a reference to any scale of fees in use & practice in the courts of the Mother Country, - or the scale laid down by the Court in their own rule upon the subject, or even to any commendable practice or usage in the office of the Supreme Court.  On the contrary the professional gentleman most interested, for the benefit of his client, in upholding the masters reports admitted fully that the master has correctly discharged his duty, and that his taxation was agreeable to the usual course of business in such cases.  In order however to satisfy ourselves upon this matter we have taken occasion to look into the most approved treatise [p. 164] upon the subject of costs, and amongst others, Palmer on Costs, and I find that upon a comparison of the bills in question with the scale laid down in those treatises that the master has allowed some items which, according to these treatises, would most probably be disallowed by the Master of the King's Bench at Westminster, & that others would have been reduced to a lower scale that out master has sanctioned.  Without any helps therefore by reference to authority, or usage, shewing that the Master has been too rigid in his taxation, I do not see how we could, (having a just regard for the interest of the profession on the one hand, and the the [sic] claim which the suitors of the court have on the other to consideration on our part) assume to exercise the power of clogging the avenues to justice by a scale of fees unusual in their amount, - opposed to all settled practice, & contrary to the fees accustomed of the King's Court at Westminster.  The Court is empowered by the New South Wales act to settle the scale of fees to be allowed, but this power must be exercised discretely, & soundly and with that attention to reasonableness which shall not amount to a denial

See Post p. 196

 [p. 196] Rapsey v Singleton continued from p. 156

of justice.  If we were to accede to the general proposition that an unsuccessful party ought to pay the fees of all the counsel that the successful party may as matter of fancy or otherwise have thought proper to retain in the conduct of a suit, I apprehend, that such a determination would have the effect of closing the doors of this Court against the poor, the helpless, and the oppressed.  The boasted maxim of the English nation, that the doors of a court of Justice are open to the poor as well as to the rich, must fall into disuetude [sic], and its doctrine become a mere satire upon the administration of the law. [p. 197]  As between party & party, to a cause, the master must exercise a sound discretion in the taxation of bills, & the number of counsel that ought to be allowed; & without laying down any general rule upon the subject, but looking at the bills of costs in the cases in question, & having reference to the nature of the business done in them, I cannot say that the master has unduly exercised the powers committed to his administration. I therefore think that the rule ought to be discharged.

Rule discharged.

 

Notes

[1 ] See also Australian, 6 April 1832, 24 August 1832. For other cases concerning the sheriff in 1832, see Roche v. Macquoid, 1832, and notes attached to that case.

For another case concerning the taxing of costs, see Allen v. Bartley, 1832, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 141: Dowling J. summarised its point as follows (pp 141-142): ``On the Assessment of damages in cases by default on Attorney's Bills Dowling required some proof of the reasonableness of the charges when there had been no previous taxation".

[2 ] "bought"

[3 ] See Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 88.

[4 ] The motion calling upon the master to revise the taxation of the costs was discharged: Sydney Herald, 19 July 1832.

Published by the Division of Law, Macquarie University