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

Ex parte Pendray [1839] NSWSupC 41

equity procedure - injunction - laches - arbitration - Shoalhaven - Port Macquarie

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 21 June 1839

Source: Sydney Herald, 24 June 1839


Friday. -- In Banco. -- Before the three Judges.

Exparte W. Pendray. -- Mr. a'Beckett moved for a Special Injunction, restraining the plaintiff in the case of Green v Pendray from proceeding until the bill which the defendant had filed on the Equity side of the Court was answered.  The circumstances as stated in the Bill appeared to be as follows: -- In the month of August, 1837, Mr. Pendray had two hundred and thirty head of cattle, two horses, and five working bullocks running at Shoalhaven, which he wished to remove to Port Macquarie, and Green, the plaintiff in the action, was recommended to him by Mr. James Munn, as a proper person to remove them.  Accordingly, on the 16th August, an agreement was entered into between Pendray and Green, by which Green undertook to remove the cattle, and be answerable for all loss, for the sum of £80.  In the following October Green proceeded to Shoalhaven, and I had possession of the cattle given to him by Henry Glanville, Pendray's overseer.  On the 11th December Green arrived at Port Macquarie, when there were forty-five head of cattle missing, which loss Pendray considered was entirely owing to the neglect and misconduct of Green.  During the journey, Green drew upon Pendray for several small sums, amounting to about £15, which were paid.  When Green came to Sydney, he demanded the balance due under the agreement, which Pendray refused to pay him, on account of the loss of the cattle; and upon mentioning the case to Munn, he said that Green ought to make good the loss of the cattle.  Subsequently the matter was referred to the arbitration of Munn, and Pendray handed him the agreement between himself and Green, an account from Green of the cattle missing, and an account of the money paid.  Munn, as arbitrator, without any further reference to Pendray, made an award in favor of Green for £73 2s. 5d., and as Mr. Pendray refused to pay that sum, Green commenced an action upon the award.  The bill closed with an allegation on the part of Pendray, that he believed there was a confederacy between Green and Munn, and that it was not the intention of either of them to pay any regard to his claims.  The affidavit of Mr. Want, stated that the action at law was commenced on the 3rd of May, and the declaration filed on the 13th, to which the defendant pleaded on the 25th May.  Counsel were consulted, who advised proceedings in Equity, but through the absence of one of the defendant's sons, they were unable to file a bill in Equity before the 14th June, although he used every despatch; and that he had applied for the agreement and other papers which had been entrusted to Munn, but he had not been able to obtain them.

The Court refused the injunction.  All the facts stated in the bill were within the knowledge of the plaintiff when the action was commenced; the bill should have been filed at once, and then if the plaintiff at law had not answered the bill, an injunction would have been issued as of course.  The laches of the defendant were in fact an answer to the application.

Published by the Division of Law, Macquarie University