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

Bossley v. Campbell [1847] NSWSupC 6


Supreme Court of New South Wales

Therry J., 30 November 1847

Source: Sydney Morning Herald, 2 December 1847, in Supreme Court Collection, Vol. 1, pp 28-29


Mr. Justice THERRY delivered the following judgment in this case on Tuesday, which was argued on a former day by Messrs. Donelly and Broadhurst, on behalf of the petitioners; and by Messrs. Fisher and Lowe, on behalf of the defendants:-

This is a petition presented by J. B. Bossley and Mary Ann Burdekin, executor and executrix of the will of Thomas Burdekin, deceased, praying for liberty to exhibit a bill of review, or a supplemental bill in the nature of a bill of review, for the purpose of obtaining compensation from the defendants in respect of certain hereditaments at Mittagong. The circumstances under which this petition is presented are shortly these:--- On or about the 14th of April, 1840, Thomas Burdekin and George Riley, (who had previously mortgaged to the said Thomas Burdekin his share in the property of Edward Riley, to which as devisee under his father's will, he was entitled), filed a bill against the several parties interested in the estate, praying among other things that the undivided parts and shares belonging to the said George Riley and Thomas Burdekin, and all the other parties named therein, might be ascertained; and that a partition and division might be made of the lands and hereditaments in the bill mentioned in equal parts or shares, and that a full and equal seventh share might be allotted unto George Riley and T. Burdekin. In March, 1841, George Riley released to T. Burdekin all his share and interest in these lands and hereditaments. On the 25th of June, 1841, by a decree of Sir James Dowling, a partition was directed to be made of these lands, and Commissioners were duly appointed to make the requisite division, and to allot a seventh portion of the property to Burdekin. The certificate of the Commissioners, making the partition pursuant to this decree, was confirmed on the 1st of May, 1844, by which as a part of his share certain hereditaments, situate at Mittagong, in the county of Camden, were allotted to Burdekin. It is not unworthy of remark that this certificate of partition was confirmed on the motion of Burdekin's own counsel.

The decree on further directions was made on the 28th of May, 1844, the minutes of which decree it is sworn were prepared by instructions from the solicitors of Burdekin, and by the solicitors of the other parties; and at the time of the preparation of the minutes no mention was made of any compensation by any of the parties for any defect of the title, or otherwise. Subsequently, by indentures bearing date the 7th of August, 1844, to which Burdekin was himself a party, and by subsequent indentures dated the 30th of September, 1845, to which the present petitioners were parties, and in which the certificate of partition was recited, this particular property at Mittagong, known as Christie's grant, and described in the schedule annexed to the first dated deed, is released to John Nepean M'Intosh, to the use of J. B. Bossley and Mary Ann Burdekin, their heirs and assigns, for ever. The petitioners state that it was not until about November, 1845, that they first became informed of the fact that the Mittagong estate formed no part of Edward Riley's estate. And it was not until about the early part of the year, 1846, that Mr. Owen, the petitioner's solicitor, waited upon Mr. Norton, the solicitor for the defendants, "for the purpose of inspecting the deeds relating to the land known as Christie's grant." So that, according to this outline of the leading dates and proceedings in the suit (for though by deaths and other events, the nominal parties and the title of the causes were changed from time to time), it is in fact one suit; it appears that Burdekin took an interest by purchase of a seventh share,--- the share of George Riley, in this estate in March, 1841. In becoming a purchaser in the very first instance the principle of caveat emptor applied to him; yet day after day, or rather year after year, he sees various steps taken in the progress of the suit without inquiring into title, but with a complete and entire acquiescence, as testified by his own deliberate acts and the concurrent sanction of his solicitor. Nor can it be said that he was taken by surprise, for the progress of the suit was slow. In June, 1841, the decree is first pronounced:--- in February, 1844, the commission of partition is returned executed;--- in May the order is made absolute confirming the certificate of partition, and on May the 28th in the same year, there comes the decree on further directions. Subsequently again the share allotted to him is conveyed; and yet throughout the whole cause, up to the early part of 1846, we do not find either Burdekin, or his executors, or his solicitors, raise any objection to title, or indeed make any inquiry into title whatever; and it is not until six months after the present petitioners have had the decree of May, 1844, made absolute against Charles and Frances O'Connell that they have filed a petition for leave to file a bill of review praying for compensation from the persons to whom the other parts of the Riley estate have been allotted.

In such a state of circumstances I entertain no hesitation in declaring that I cannot entertain this application n without a manifest infringement of the principle that prevails in all similar cases, and that enjoins as a condition on which the prayer of such a petition should be granted, that "the matter must be not only new, but it must be such as the party by the use of reasonable diligence could not have known, for if there be any laches or negligence in this respect, that destroys the title to relief." Story Eg. Pl. s.414, But besides the ordinary diligence which a purchaser is required to exercise,---from an early stage of the proceedings an invitation was, as it were, held out to Burdekin to make inquiry. In the answer of Robert Campbell, senior, so far back as the 3rd of May, 1841, reference is made to a schedule annexed to the answer, containing a list of all the real estates which Edward Riley was seized of or entitled to at the time of his death; and in this schedule this particular estate at Mittagong is set forth as a parcel of land " purchased but not conveyed to Edward Riley." This would have been ample notice to put a purchaser upon inquiry; and it cannot be said, that a person having such notice, and being a party to a suit relating to this piece of land, uses due diligence touching the title to it, if it does not put him also on inquiry. The obvious questions would suggest themselves to any reasonable mind,---Why has not the land been conveyed? Is it because the vendor had not a title to convey? Or what is the cause of the purchase not being completed by a conveyance? But even this distinct intimation of the incompleteness of title does not awaken the diligence of Burdekin; but throughout he and his solicitors, who attended at the various stages of the suit before the Master, and approve of and adopt this land as part of the seventh share allotted to Burdekin. It is not averred that the fact of possession by another person was not known to Burdekin, and it was either known to him, or from the information patent on the face of the record, it ought to have been known to him and his solicitors. The present petitioners cannot stand in a better position than Burdekin, whom they represent; and unless it be shown that, at the hearing, the fact was not known, or means of knowledge not afforded to Burdekin, the present petitioners are precluded from a right to a bill of review. All the cases on the subject of bills of review support this doctrine. It will be sufficient to refer to the following--- Barrington v.O'Brien, 2 B. and B. 140; Young and Keighly, 16, Vesey; Ord. and Noel, 6 Mad. 127, Partridge Usborne, 5 Russell, 195, in all which cases is preserved the principle this expressed by Lord Eldon in Young v. Keighly---"Upon a supplemental bill in the nature of a bill of review, the question always is, not what the plaintiff knew, but what, using reasonable diligence, he might have known." The reasonableness of this principle is further enforced by Lord Eldon, as he states it to be "incumbent on the Court to take care that the same subject shall not be put in a course of repeated litigation; and that, with a view to the termination of the suit, the necessity of using reasonable diligence should be imposed upon parties. The Court must not therefore be induced by any persuasion as to the fact that the plaintiff had originally a demand which he could have sustained, to break down rules established to prevent general mischief at the expense of particular injury." From Keighly v. Young, decided in 1809, to Acland v.Braddick, in 5th Bevan, decided in 1843, the same invariable rule prevails, that where the facts were such as were known, or by reasonable diligence might have been known, previous to decree, to the plaintiff, he is precluded from making them the foundation of the extraordinary relief prayed for in a bill of review, or supple mental bill in the nature of a bill of review. The affidavit of William Sherwin furnishes some evidence of actual acknowledgement by Burdekin that Christies and was in the possession of another person; but in the impossibility by death of obtaining any knowledge from Burdekin on this point, Sherwin's affidavit alone does not being home actual knowledge to Burdekin; for though the land was as Sherwin states the same "as in the pleadings mentioned," yet it does not of necessity follow that Burdekin knew it to be the same land, --- for non constat , but that Christie may have had other land in Mittagong, and moreover it would require some further explanation than is given, to show why Burdekin, who may be presumed to be a person of ordinary sagacity, should negotiate for the purchase of Sherwin's interest, if he believed it to be the same land which already had been wholly purchased by, though not conveyed to, Edward Riley. Besides, the negotiation was previous to the date of the certificate of partition, which gave him a particular interest in the land. The argument urged from the consent of parties is not borne out by reference to the record: for the decree, which is the record to which alone I can refer, states it to be a decree made "not by consent," but after "debate by counsel." Though this prevents the strict application of the principleconsenus tollit errorem , yet it does appear sufficiently that Burdekin's attornies attended with the attornies in the interest of the other parties, and settled the minutes; and that, in fact, the partition was acquiesced in by Burdekin without murmur, though frequent opportunities were afforded to except to the report of the Commissioners, or bring forward any complaint against the partition at other stages of the suit. Considering, therefore, the nature of the suit, the facts now brought forward---the time at which they were known, or might and ought to have been known, to the present petitioners, or the party whom they represent, or their solicitors; and considering, moreover, not only the opportunity of knowledge afforded them, but by which they were invited to ask relief if they deemed they were entitled to it;---I am of opinion that the petitioners are not entitled to file a bill of review or such supplemental bill, in the nature of a bill of review, as they now desire---and that this petition must be dismissed with costs.

Published by the Division of Law, Macquarie University