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

Castles v. Bucknell [1837] NSWSupC 34

injunction, equity, inadequacy of legal remedies, conveyancing

Supreme Court of New South Wales

Dowling A.C.J. and Burton J., 24 June 1837

Source: Australian, 30 June 1837[1 ]

Castles v. Bucknell. - Mr. Windeyer moved on the part of the defendant, that an injunction be granted to stay execution from being taken out in this suit, until the plaintiff and one Brown, a surveyor, made answer to certain interrogtories submitted to them by the defendant, in a bill which he had filed on the Equity side of the Court.  The learned gentleman read the affidavit of the defendant, from which it appeared that he purchased some time since from Mr. Brown, an allotment of ground situate at New Town, which Mr. Brown then described as being part of Devine's grant, and for which Mr. Bucknell paid £150 to that person in the following manner.  To the amount of £60 by delivering bricks to his order in a certain quantity at a stipulated price, and for the remainder by giving to him, his promissory notes at various dates.  The defendant had also accepted a conveyance of the property from Brown, under which he retained possession of the premises.  He had since found out however, that Brown had imposed on him; that the ground was not part of Devine's grant; that the party from whom he Brown, derived his title, was one Bernard Rochfort, a convict attaint; and that in point of fact, the conveyance was no more than a blank piece of paper.  On this account Mr. Bucknell had refused payment to Brown of some of the promissory notes when due; but since they had become overdue, they had been placed for recovery in the hands of one Morriss Castles, a mere pauper, a person who had applied to the Court to be allowed to defend an action in formà pauperis, and Castles having obtained a judgnment [sic] upon them, Mr. Bucknell had paid into Court the sum of £96, the amount of debt and costs, which he now sought to restrain Castles from obtaining, until he and Brown had answered the said interrogatories on oath.

Mr. Kerr opposed the application.  He said, that the party came too late; that he had taken a conveyance of the property, and under that conveyance held possession of it.  Now the conveyance either did or did not contain covenants for title.  If it did, then the defendant could sue Brown upon them; and if it did not, then the defendant had only himself to blame for accepting an insufficient deed, and could not now take advantage of it.

The acting Chief Justice said, the general rule was, that relief in Equity could not be granted, where a party had a remedy at law.  In this case the defendant could clearly maintain an action at law, against Brown for breach of covenant, and he could not therefore have his relief by Equity also.  The Court was bound to refuse the application.

Mr. Justice Burton. - I am of the same opinion.

Motion refused.

Mr. Windeyer subsequently moved the Court that the bill in Equity above referred to, be dismissed without costs. - Granted.


[1 ] On 6 June 1837, Dowling A.C.J. heard another action between the parties, in assumpsit, which resulted in a verdict for the plaintiff, Castles: Dowling, Proceedings of the Supreme Court, Vol. 135, State Records of New South Wales, 2/3319, p. 121.

Published by the Division of Law, Macquarie University