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

Christie v. Eales [1847] NSWSupC 13

foreclosure, practice

Supreme Court of New South Wales

Stephen C.J., 23 July 1847

Source: Sydney Morning Herald, 24 July 1847, in Supreme Court Collection, Vol. 2, p. 4

This was a petition by way of appeal, against the decree of the Primary Judge. This was a foreclosure suit against the defendant, who was a second mortgagee, and His Honor decreed in the terms of the prayer that the defendant should be foreclosed in the usual way. The petition of appeal set forth the grounds of appeal, and the material grounds were, --- that there was no evidence produced at the hearing below to warrant the decree; that certain examinations were had before the Master, defendants interested in the suit not having had notice of the intended examinations, and these were allowed to be read at the hearing of the cause; and that indentures of the 2nd January, 1841, and 12th September, 1842, were not produced as exhibits, although referred to by the answers.

Mr. GORDON appeared in support of the decree, and contended that as to receiving at the hearing certain evidence alleged to have been taken in the absence of the defendants, who had no notice to be present, it was too late now to take that objection; it might have been very well the ground of a motion to suppress this evidence on the ground of irregularity before the hearing. With regard to the non-production of the two deeds referred to, it was submitted that the first deed of the 2 nd of January, 1841, was not necessary to prove the plaintiff's case --- (by this deed a certain portion of the mortgaged property had been reconveyed,) --- for the prayer of the bill expressly excepted the property described in this deed; and as to the other deed, bearing date the 12 th September, 1842, an order had been obtained from this Court, compelling the production of this deed, --- the same having been admitted by the defendant's answer to be in his possession; but to this order compliance had not been made --- and the deed was not now forthcoming: it was now proposed to prove by affidavit that a copy of the order for the production had been served upon the defendant, with a view of letting in secondary evidence of the deed, by referring to the pleadings --- (and here a long argument ensued as to the plaintiff moving the Court that the further hearting of the cause be postponed until the deed be produced, the party guilty of the delay paying the costs occasioned by the delay. To this objection was made, and the arguments were continued.) It was then contended, for the purposes of the plaintiff's case, it was not absolutely necessary to produce the deed; the defendant Eales admits it to be in his possession, and admits that he has an interest in the property sufficient to warrant the plaintiff masking him a defendant --- and sufficient to get a decree against him as second mortgagee. Again, as to the other objection as to the plaintiff's deed --- the mortgage deed --- this objection arises merely out of as clerical error; the stating part of the bill sets out the deed correctly, but the interrogatory founded upon this statement, interrogates as to another deed, different however only in date. This objection, it was submitted, was caused by the defendant Eales admitting the "purport and effect" of the deed in his answer, but refers to it in the usual way; (although now it may be said for him, that he has only admitted the incorrect deed,) and that the real deed before the Master was produced, and the defendant examined witnesses upon it. The date of the deed in question, as there is no other deed stated or referred to in the bill made between the same parties, must be viewed in the light of an impossible date, and taking the answer as an admission of the existence of the deed, it was necessary to prove the deed.

Messrs. DONNELLY and BROADHURST appeared in support of the appeal, and took other objections not taken at the hearing.

The COURT did not call upon Mr. Gordon in reply; and as His Honor the Chief Justice, in delivering the judgment of the Court, referred to the appellant's arguments, it will not be necessary to mention them here.

The CHIEF JUSTICE, in delivering the judgment of the Court, said, as to the first point, as to there being no deed produced answering to the statement in the bill, but a deed of a different date, that objection would not avail, although the admission in the answer of the deed is qualified by the reference to it. Throughout the bill there is only one deed to the purposed and effect admitted by the answer, and therefore the error in the date is of no great importance. Secondly, as to the non-production of the defendant's deed, admitted by his answer to be in his possession; he has had many opportunities to produce the deed; it was his duty to do so; it was imperative on him to do so, and not on the plaintiff; there is sufficient on the pleadings to show that the plaintiff should succeed without the actual production of the deed; he has an admitted interest in the property. Thirdly, as to the deed of reconveyance not having been produced, the Court would attach no weight to that objection; it was not necessary for the purpose of the plaintiff's case. The prayer of the bill affects the land, irrespective of that described in the deed of reconveyance. Fourthly, as to the mis-description of the parcels, as appearing between the statements in the bill, and the deed itself. This mis-description is of a trifling nature, and one that could not mislead. And, lastly, that the point made, as to the improper reception of evidence before the Master, the Court thought that this objection must share the fate of all the others. If there had been an irregularity, the Court might have been moved, before the hearing of the cause below, to suppress so much of the evidence as was alleged to have been taken irregularly. The rules as to taking evidence before the Master, Stephen's Prac., 301, must be construed strictly. But here the defendant is not strictly within those rules --- he attended before the Master, and shared in the examination of the witnesses, and made then no exception to the absence of the other defendants, and thus clearly showed that he, at least, had notice to attend; and having attended, and shared in the examination, it is not for him now to complain.

The Court dismissed the appeal, affirming the judgment of the Court below, with costs.


Published by the Division of Law, Macquarie University