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

Thorpe v. Smith [1834] NSWSupC 46

equity procedure - injunction

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 8 March 1834

Source: Australian, 10 March 1834[ 1]

In Equity - Thorpe v. Smith - In this case Mr. Carter obtained a rule nisi last Saturday, calling upon defendant to show cause why the Master's report approving of a receiver should not be confirmed.  Mr. C. now moved to make the rule absolute.  Mr. F. Stephen opposed the report being confirmed.   This bill had been filed to obtain an injunction to restrain defendant from receiving money as executor, under the will of the late Mrs. Garratt, and for the purpose of appointing a receiver.  Mr. Rodd had been approved as receiver by the Master, to which he now objected, as he was an Attorney and Solicitor of that Court, and during the progress of many cases in law and equity, he had been managing clerk in the office of the Attorney opposed to the defendant - therefore it might be presumed that he had imbibed prejudices which might be injurious to the interests of his client.  It was no absolute disqualification that Mr. Rodd was an Attorney, but the Court always appointed professional men with reluctance, and Lord Thurlow considered them improper, and thought it would be better that a standing order should be made to that effect.  Upon these grounds Mr. S. rested his exceptions, and thought it should be again referred to the Master to appoint another receiver, not an Attorney of the Court.  He could not show any money interest.  These observations were of course not intended to reflect on the character or integrity of Mr. Rodd.

Chief Justice - The Court have appointed Solicitors receivers.

Mr. Carter - In three different cases.

Chief Justice - I have the highest possible respect for the decision of Lord Thurlow, but there is not sufficient in the argument to impress upon my mind the impropriety of an Attorney being a receiver, unless he was in contact with the parties.  The Court saw no ground for disturbing the Master's report.

Mr. Carter moved that the sum of £5, which was provided by the rules, to be paid into Court with the exceptions, should now be paid, as they were disallowed.  In the case of Hayes v. Cooper, where the decision was originally made, it had been stated that it was a family or friendly suit which was the reason probably why the Court had then deviated from the English practice.

The Chief Justice said that the Court had come to the decision upon solid grounds, and saw no occasion to depart from it.  It was desirable to assimilate proceedings in the Court of Equity as much as possible with those of the Courts of Law, and in this Court especially where the gentleman acting as Master, though a very able officer, was not situated as Masters at home, there was good reason for not interposing difficulties in the way of taking exceptions in the equity side, any more than in cases of demurrer on the Common Law side. ...

Mr. F. Stephen moved that the injunction in the case of Thorpe and others v. Smith, be dissolved.  To the bill which had been filed for the purpose of obtaining an injunction, an answer had been put in, to which exceptions were taken on immaterial points, merely as he believed for the purpose of embarrassing defendant - a further answer on the matters excepted to, had never been filed, completely answering every portion of the bill.  He therefore now moved under the order of the Court for the injunction, that it be now dissolved.

Mr. Carter, in reply, contended that the utmost the other side could obtain would be a rule nisi, the order being until answer and further order, not or further order.  But he contended that exceptions being filed, and eight days having elapsed before the answer was amended, the exceptions must be referred to the Master before the present motion could be made.  The opposite side could not put in a further answer until the exceptions were disposed of.  The Court observed that as the difficulty was one only of practice, it would be better if it could be got over at once, and the case brought to a hearing on its merits without unnecessary delay.  They granted the rule nisi, in the hopes that by next Saturday it would be ready for decision on the points really in dispute.

 

Dowling and Burton JJ, 19 April 1834

Source: Australian, 21 April 1834[2 ]

 

Thorpe and others v. Smith. -  In this case the Court continued the injunction preventing the defendant from acting as executor of the late C. Garratt, until the hearing, on the ground that his affairs had become embarrassed since he was appointed executor.

 

Notes

[ 1] See also Sydney Herald, 10 March 1834; and see Australian, 3 March 1834.  For the notebook version, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3276, vol. 93, p. 37.

On 15 March 1834, the court appointed Mr B.C. Rodd as receiver: Australian, 17 March 1834.

[ 2] See also Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/2378, vol. 95, p. 123 (although much of it is in shorthand).

Published by the Division of Law, Macquarie University