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

Bloomfield v. Raper [1842] NSWSupC 6

debt recovery - set off

Supreme Court of New South Wales

Stephen J and Assessors (Dr. Loitte and Captain Steele) 10 May 1842

Source: Sydney Herald, 11 May 1842

            This was an action brought to recover the amount of £21 16s. 9d., the amount of a builder's account, for work done by the plaintiff for the defendant.           

            Mr. Broadhurst appeared for the plaintiff, and Mr. Windeyer for the defendant, who had pleaded a set off and a tender.

            A Mr. Robertson, an architect and builder, deposed, that he had seen the work done, which consisted of a partition, and the removal of a door, repairing brickwork, plastering, &c.

            Mr. Michael Gannon, a builder, and other witnesses, following the same trade, deposed that the defendant was very much overcharged for the work done, notwithstanding the fall in the price of building materials which had taken place since the work was completed; and it was stated that the exorbitant character of the charges had first induced the defendant to resist the plaintiff's claims.

            A party named Haddaway, a clerk of the defendant's attorney, proved that before the action was brought, he had gone at the desire of the defendant and had tendered a sum of £16 17s. 2d, in full satisfaction of the plaintiff's claim; stating, at the same time, that the money tendered was the amount of Mr. Bibb's (an architect) estimate of the work. The defendant declined the tender, on the ground that Mr. Robinson, the other architect, had estimated the work at a much higher rate, and concluded by referring Mr. Haddaway to Mr. Smith, his, the plaintiff's, attorney. The plaintiff's attorney through his clerk, Mr. Bailey, had afterwards offered to take the sum in full of all the plaintiff's demands; but the defendant then refused to pay, unless the plaintiff agreed to deduct the amount of a meat bill, which the defendant, as a butcher, had against the plaintiff.  

            Mr. BROADHURST, in reply, urged that the tender, coupled as it was with a condition, was not a good tender in law, and therefore could not avail the defendant under that issue. The case was left to the Assessors, who found a verdict for the defendant on the set-off. ; for the plaintiff, on the tender; and a third issue, relating to the surplus, was found for the defendant. The above case, in consequence of several points which arose in the course of the trial, lasted a good part of the day.

Published by the Division of Law, Macquarie University