Dixson Trust Limited v Beard Watson Limited [1915] HCA 22

Dixson Trust Limited v Beard Watson Limited [1915] HCA 22

The order allowing the demurrer to the second plea should be discharged, and the hearing of the demurrer should be postponed until after trial of the factual issues, with liberty to amend, because a decision at this stage would not address the true questions in controversy since the deed itself was not before the Court.

Parties
Appellant; Defendant: Dixson Trust Limited; Respondent; Plaintiff: Beard Watson Limited
Jurisdiction
Australia
Judgment Date
31 March 1915
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales; Appeal Against Order Allowing a Demurrer to the Second Plea
Outcome
Order allowing the demurrer to the second plea discharged; hearing of demurrer postponed until after trial of factual issues; liberty to amend; costs of demurrer and appeal to abide event of the action.
Legal Topics
Demurrer, Pleading, Covenant, Implied Condition, Pleading Construction, Postponement of Legal Issue
Practice and Procedure Demurrer Pleading Covenant Implied Condition Pleading Construction Postponement of Legal Issue

Case Brief

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Parties

Dixson Trust Limited

Appellant; Defendant

Beard Watson Limited

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales; Appeal Against Order Allowing a Demurrer to the Second Plea

Legal Issues

  1. 1 Whether a demurrer should be allowed to a plea alleging an implied condition from a deed where the deed's language is not set out
  2. 2 Whether the hearing of a demurrer should be postponed until after issues of fact are decided

Ratio Decidendi

The order allowing the demurrer to the second plea should be discharged, and the hearing of the demurrer should be postponed until after trial of the factual issues, with liberty to amend, because a decision at this stage would not address the true questions in controversy since the deed itself was not before the Court.

Court Disposition

Order allowing the demurrer to the second plea discharged; hearing of demurrer postponed until after trial of factual issues; liberty to amend; costs of demurrer and appeal to abide event of the action.

Orders

  • Order appealed from allowing the demurrer to the second plea discharged.
  • Order that the hearing of such demurrer be postponed until after the trial of the issues of fact in the action.