Rich v Strelitz Bros and Moss [1906] HCA 68

Rich v Strelitz Bros and Moss [1906] HCA 68

The plaintiff is not entitled to a new trial on the ground of judicial misdirection as specific questions now sought were not required at trial, and the case was solely put on actual fraud which failed. However, by consent and on stringent terms, the action is dismissed without prejudice to bringing a fresh action on alternative grounds (other than actual fraud), provided the plaintiff pays costs and brings into Court the proceeds already received.

Parties
Appellant; Plaintiff: Rich; Respondents; Defendants: Strelitz Bros. & Moss
Jurisdiction
Australia
Judgment Date
05 November 1906
Procedural Posture
Appeal / On Appeal From the Supreme Court of Western Australia; Decision of Full Court of High Court
Outcome
Appeal dismissed subject to terms; action stood dismissed without prejudice to a new action on terms.
Legal Topics
Mortgage Law, Fraud (actual, Constructive), Sale by Mortgagee, Setting Aside Transactions, Leave to Amend Pleadings, Remedies in Equity
Equity Contract Bankruptcy Mortgage Law Fraud (actual, Constructive) Sale by Mortgagee Setting Aside Transactions Leave to Amend Pleadings +1 more

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Parties

Rich

Appellant; Plaintiff

Strelitz Bros. & Moss

Respondents; Defendants

Procedural Posture

Appeal / On Appeal From the Supreme Court of Western Australia; Decision of Full Court of High Court

Legal Issues

  1. 1 Whether a new trial should be granted on grounds of misdirection to the jury in a case alleging conspiracy to defraud and other equitable grounds regarding a sale and mortgage.
  2. 2 Whether the plaintiff should be granted leave to amend pleadings to put a new case (other than actual fraud) on appeal.

Ratio Decidendi

The plaintiff is not entitled to a new trial on the ground of judicial misdirection as specific questions now sought were not required at trial, and the case was solely put on actual fraud which failed. However, by consent and on stringent terms, the action is dismissed without prejudice to bringing a fresh action on alternative grounds (other than actual fraud), provided the plaintiff pays costs and brings into Court the proceeds already received.

Court Disposition

Appeal dismissed subject to terms; action stood dismissed without prejudice to a new action on terms.

Orders

  • Order varying judgment so it stands as a dismissal of the action with costs, without prejudice to bringing a new action (other than actual fraud in the sale).
  • Condition: any new action to be brought within three months; plaintiff to pay into Court £3,000 and to pay defendants' taxed costs of this action and of this appeal within that time; failure to comply, appeal dismissed with costs.