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

Ryan v Ryan (1836) NSW Sel Cas (Dowling) 865; [1836] NSWSupC 79

Court of Requests

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 16 July 1836

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 46

Where plaintiff sought to recover a disputed balance of an unsettled account exceeding £10 and recovered only £7.16; held that he was not disentitled to costs under the Requests Act, 3 Wm 4 No. 2 (1832), s. 7.

This was an action to recover twelve months wages at £15 per annum. S. Stephen for plaintiff, Plunkett S.G. for defendant. At the trial before Burton J. the plaintiff recovered a verdict of £7.16 and now the defendant moved under the Court of Requests Act , 3 Wm 4 No. 2 (1832), s. 7 for a certificate depriving the plaintiff of his costs, the cause being, as was contended, within the jurisdiction of the Court of Requests. There was reasonable evidence of the plaintiff having served 9 months under a hiring for a year, which would entitle him to £11.5 and the dispute was whether he was not entitled to the remaining three months, having been dismissed the defendant's service without any cause being proved. The defendant had a set off for rations supplied to the plaintiff and money paid, and under the facts proved, which were disputed, the assessors reduced the plaintiffs claim to £7.16 and gave him a verdict for that sum. The learned Judge thought that it was a disputed balance of an unsettled account, and now:

Forbes C.J. and Dowling J. were of the same opinion, holding that if there be a disputed balance of an unsettled account, which the plaintiff bona fide seeks to recover and the balance claimed is above £10, and he recovers less, still he is not to be deprived of his costs under the 7th section of the Requests Act and they referred to Phelps v. Cohen and Boyce v. Biddulph as cases recognizing this principle.

Burton J. concurred.

Rule Refused.

Published by the Division of Law, Macquarie University