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

Nichols v Macdonald (1836) NSW Sel Cas (Dowling) 753; [1836] NSWSupC 14

setting aside judgment - legal practitioners, liability for negligence

Supreme Court of New South Wales

Hearing, 5 March 1836

Source: Dowling, Select Cases, Vol. 7, State Records of New South Wales, 2/3465[ 1]

[p.90] [1836


5th March]

[After the lapse of three terms & no steps in the mean time taken, the court will not set aside a judgment manifestly erroneous on the face of it.]

G.R. Nichols v Margaret Macdonald

Assumpsit for work and labour against the Deft as Executrix of George Macdonald, deceased, laying the promise and undertaking to be by the testator in his life time.  The Deft pleaded simply the general issue.  She had intended to plead ne unques executrix.  Upon this issue the cause was set down as undefended, but the Deft appeared by Counsel, and it was tried in February 1835, when the assessors found for the Plf that the deft did undertake & promise and assessed damages to the amount of £26.15.4. for which together with costs the Plf took out execution against the proper goods & chattels of the Deft, & she paid the amount but under a protest, & gave notice of her intention to apply to the Court to set aside the proceeding for irregularity, & that she never was executrix & had never intermeddled with the testators estate.  This notice was never [p.91] followed up by any application until the present term, when a rule to shew cause was obtained for setting the Judgment & all subsequent proceedings aside for irregularity & why the Plf should not refund the money levied under the execution.

Foster now shewed cause and contended that the application came too late; the cause was out of Court.  The defts plea was a nullity & the Plf was at liberty to treat it as such.  The declaration did not aver a promise by her & she pleaded that she did not promise; intending perhaps to plead that she never was executrix.  Three terms had now lapsed; she had paid the amount of the execution, true under a protest, but as she delayed her application until now, it must be considered as a voluntary payment in her own wrong, & the court cannot interfere.  It would lend to the greatest inconvenience if parties, after having appeared to defend an action, could be allowed [p.92] to up up [sic] a judgment three terms after it was obtained, when they might have come sooner.

Plunkett S.G. contra, contended that the delay would make no difference, if the Court saw that substantial justice had not been done.  The Court would review the case like a Court of error.  Here though the laches of her attorney in not putting in a proper plea, she was saddled with a liability as executrix of of [sic] the testator, when in fact she never was executrix.  In fact the assessors found upon an issue which was never raised, namely, whether she ever promised.  No promise in her was averred, & they found that she did promise.

Per Curiam.  No doubt there is a fatal error on the record, which the Court would have set right if an application had been made in time, but after the lapse of three terms, & no steps taken in the mean time, we think it is too [p.93] late to rip up the judgment.  If she has been damnified by the negligence of her Attorney, she will have her remedy, if it shall appear that she gave him proper instructions.  It is too late to set aside these proceedings.

Rule Discharged with Costs.



[1 ] See also Australian, 8 March 1836.

Published by the Division of Law, Macquarie University