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

Barnett v James [1833] NSWSupC 11

trusts - tenancy - contract law, privity - mortgage

Supreme Court of New South Wales

Dowling J., 4 March 1833

Source: Sydney Herald, 7 March 1833

Barnett v. James. - This was an action for use and occupation, to recover the sum of £10.

The following were the circumstances of the case:-  In the month of July last, a Sergeant named Thomas Smith, of the 39th Regt., being about to embark for India, and leave his wife and children in this Colony, made a settlement upon them of a house, of which he was possessed, to which Captain Bunn was trustee.  At this time he was considerably indebted, and among others to a Mrs. Ogley, to the amount of £118, besides several other small sums.  Anxious to pay off these engagements, and leave something for the support of his wife, he applied to plaintiff for £250, to be advanced as a mortgage on the premises, at 12 per cent., to secure which a deed by demise was executed, but Barnett was ignorant at the time of the existence of the deed of settlement, which had been registered.  Sergeant Smith went to India, and the premises were occupied by defendant, and on the 4th December last a quarter's rent becoming due, and the interest on the money not being paid plaintiff, he gave defendant notice to pay the rent to him.  This notice being disregarded, the action was now brought on the mortgage to recover the amount of rent accrued since the notice.

Mr. Norton contended that the plaintiff was out of Court, he not having shown a privity on the part of defendant that could bind him to pay the rent to him.

Judge Dowling was of opinion that plaintiff had a proper locus standi in the Court, he had all the legal rights of Sergeant Smith.  Sufficient privity had been proved on the part of the defendant as to the existence of the deed of mortgage.  Verdict for plaintiff, £10.

Messrs. Wentworth and C. H. Chambers for plaintiff, and Mr. Norton for defendant.

Published by the Division of Law, Macquarie University