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[1957] HCA 88
High Court of Australia
1957-07-01
Taylor JJ
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Webb, Kitto and Taylor JJ. Ebert v Union Trustee Co of Australia Ltd [1957] HCA 88
ORDER Appeal dismissed as incompetent with costs including costs involved in the application for special leave.
Dixon C.J.delivered the oral judgment of the Court: -
This is an objection to competency of an appeal. The appeal is instituted from a judgment and order of the Chief Justice of Queensland. The suit, which his Honour heard at considerable length, was of a somewhat old-fashioned sort, that is to say, for an order for the general administration of the estate of a deceased testator. The relief claimed is that the estate of the testator be administered; that the trusts be carried into execution under the direction of the Court; that an account be taken of all the real and personal estate not specifically devised or bequeathed being estate to come to the hands of the defendant or which but for the defendant's wilful neglect or default might have been so received; for inquiries as to what parts of the testator's estate are still outstanding; for costs; and for further or other relief. The suit was dismissed by the Chief Justice.
The estate is said to bear a value of about £10,000. The plaintiff is beneficially entitled to a quarter of the residue. Of her share she received enough to make it quite clear that her share in what remains as yet undistributed would be below the appealable minimum.
The question is whether the relief claimed can be said to come within s. 35 (1) (a) (2) of the Judiciary Act 1903-1955. The question is not exactly of a type which has come before us often, frequent as these questions have been. But we have recently given elaborate consideration to the criteria for determining whether a claim involves the appealable minimum. We have done so in Oertel v. Crocker [1] and more recently in Ballas v. Theophilos [No. 1] [1] . What was said there rather qualifies the application of what was said in Oertel v. Crocker [1] to cases such as specific performance when the full value of the property involved, regarded independently of the consideration, involves the appealable amount.
In the present case the relief relates entirely to the administration of assets. The claim is that because the order sought is with respect to all the property, that is to say, the full estate and it exceeds £1,500 in value it comes within s. 35 (1) (a) (2) of the Judiciary Act. We do not think that that is correct. It still remains generally true that the plaintiff must show prejudice through the order made which sounds in the required sum of money. What we said in Ballas v. Theophilos [No. 1] [1] was that that is qualified in some cases, and in particular in cases where recovery of an amount equal to the appealable amount of £1,500 is sought, but there is some answerable detriment, a corresponding detriment to the plaintiff that we thought ought not to be set off for the purpose of ascertaining the amount involved.
We therefore think that on that footing it is not a competent appeal.
It was further contended that because the decree was sought on the footing of wilful default there might be a difference, viz., because it was sought as a first step to make the trustee company itself liable personally for neglect which might exceed the amount. The decree sought does not do it in itself. It is merely a step that conceivably might result in further steps which might end in some sort of decree; even then it would be necessary to prove that the amount of £1,500 was involved beyond liabilities.
In the cases to which we have referred we discussed to some degree Robert H. Barber & Co. Ltd. v. Simon [1] , and also Tipper v. Moore [2] , a very special case which has created some difficulty over a period of years in this department of the law. These cases were concerned with what I may describe as suits in relation to the administration of assets; but the explanations given of these cases show that they do not apply. It is clear that Robert H. Barber & Co. Ltd. v. Simon [1] , which is a company case relating to liquidation of the entire mass of assets of the company, and in which the company was the appellant, has no application to the present case.
We were asked for special leave to appeal. Members of the Bench have studied elaborately the judgment of his Honour and we have all heard the points specifically made in relation to that judgment. We are clearly of opinion that they do not fall within our general rule of granting special leave.
Of course the discretion to grant special leave is a wide one, and there has been a good deal of fluctuation from time to time in the administration of that discretion. But we cannot see any point in a case such as this which makes it right in the exercise of our discretion to bring it up to this Court, and we think the time has arrived when we ought to be more rigid in the exercise of the power to give special leave.
The appeal will be dismissed as incompetent, with costs including costs involved in the application for special leave.
Ebert
Union Trustee Co of Australia Ltd