For the reasons I have given the appeal should be allowed.

This case has very great importance, and has given rise to considerable discussion of the principles that should control its decision. That is owing to the rarity in Australia of such circumstances as have been shown to exist in the present instance.

The course very properly taken by counsel during the argument has presented the substantial question for decision without further delay or expense. In addition to the materials formally contained in the transcript, it was ultimately admitted that Street J., from whom this appeal comes, had before him the judgment of the Full Court in Osborne v. Wilkinson [], and that the report of that case was treated by both parties as representing the facts, and is to be regarded now as containing all the facts material to the question of the validity of the agreement. The objection to the agreement taken before J. was that, by reason of its unlawfulness, penalties had accrued which the present appellant claimed he had a right to recover, and therefore to set off against the amount of the judgment. It was therefore admitted that it was argued before the learned Judge, as the foundation of that contention, that the agreement upon which the judgment rested was unlawful.