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

Brown v Raine [1835] NSWSupC 25; sub nom. Brown v. Raine (No. 2) (1835) NSW Sel Cas (Dowling) 509

marriage settlement - trustees, liability to pay costs - mortgage, foreclosure under - registration of deeds - insolvency

Supreme Court of New South Wales

In banco, 28 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

[p. 114]



March 28th]


[Costs allowed to Trustees an [sic] infants for their answers to a Bill of foreclosure sed quereWhether an insolvent mortgagor though his appearance and answers were [sic] necessary is entitled to costs, where the mortgaged premised had been previously settled by marriage settlement which fact he had concealed from the mortgagee.]

In Banco

Brown v Raine and others

This was a Bill of foreclosure upon a mortgage granted by Raine to Scott deceased agent of theLeith Australian Company of which the Plf was Manager.  The subject of the mortgage was land under a marriage settlement by Raine to trustees in trust for his wife and the children of the marriage.  This marriage settlement had never been registered & therefore became a nullity. Raine had subsequently taken the benefit of the Insolvent act.  The bill had been filed against the trustees, & the infant children of the marriage, and Raine himself.  These several parties put in their respective answers, and a decree was taken by consent on the 16th October last, with costs to the Defts.

Kinchela A.G. now moved to have the decree amended by disallowing the costs of Raine the insolvent mortgagor, is not those of the other Defts, on the [p.115] ground that there were no surplus funds to satisfy the costs after paying off the mortgage.

Wentworth contended that if the answers of all the Defts were necessary which they clearly were to enable the plf to foreclose & make good the title to the premises to the costs they had been respectively put to by appealing.  There could be no doubt of the trustees & the infants being so entitled, they having no interest in the matter, & as to the Insolvent Mortgagor there was no more reason why he should not have his costs, than a Bankrupt, who had not misconducted himself. (Locke v Bromley 3 Ves.40.  Exparte Horne 1 Madd. 623.  7 Geo. 2. C. 20)

Kinchela in reply.  The estate is not sufficient to pay the amount of the Marriage debt & therefore no costs can be allowed.  If costs are allowed the effect will be to make them a personal charge on the Mortgagee, which is inequitable.  The Trustees and the Insolvent clearly have no title to costs.  The trustees were guilty of neglect [p.116] in not getting the marriage settlement registered, and Raine was guilty of fraud in concealing that settlement from the Mortgagee at the time of the mortgage.  There is as little reason why the Infants costs should be  personal charge upon the mortgage.

Per Curiam.  The fact that the marriage settlement does not appear upon the pleadings & therefore we cannot take notice of it.  The appearance of the trustees & the infants was necessary.  They were brought here by the Mortgagee for his benefit to enable him to foreclose and perfect his title.  We see no reason therefore why they should not have their costs; but we shall reserve the question whether the Insolvent Mortgagor ought to have his costs.


Costs afterwards refused.



[1 ] On insolvency in 1835, see also In re Raine, Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465, p. 1 (and Sydney Herald, 8 June 1835; Australian, 9 June 1835), which Dowling J. summarised as follows ``The trustee of a N.S.W. Insolvent having creditors here as well as in England was ordered to declare a dividend, giving the Englishcreditors 12 months time to remain & three months to the Colonial creditors to prove their debts".

Published by the Division of Law, Macquarie University