Wicks v Bennett [1921] HCA 57

Wicks v Bennett [1921] HCA 57

Sale from Bennett to Diplock was genuine, and Diplock's knowledge of partnership's unregistered interest does not amount to fraud. Plaintiffs could not enforce their unregistered interest against Diplock or his executrix. No relief against Bennett under the pleadings in this proceeding.

Parties
Appellant: John Henry Wicks; Appellant: Thomas Nicholls; Respondent: John Erridge Johnson; Respondent: Frederick James Bennett; Respondent: John Henry Diplock; Respondent: Nellie Diplock
Jurisdiction
Australia
Judgment Date
16 December 1921
Procedural Posture
Appeal / High Court Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed with a variation
Legal Topics
Fraud, Constructive Trust, Registered Proprietor, Unregistered Interests, Real Property Act, Partner's Secret Profits
Property Law Equity Partnership Law Fraud Constructive Trust Registered Proprietor Unregistered Interests Real Property Act +1 more

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Parties

John Henry Wicks

Appellant

Thomas Nicholls

Appellant

John Erridge Johnson

Respondent

Frederick James Bennett

Respondent

John Henry Diplock

Respondent

Nellie Diplock

Respondent

Procedural Posture

Appeal / High Court Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether sale by Bennett to Diplock was fraudulent or a sham
  2. 2 Whether Diplock was a bona fide purchaser for value
  3. 3 Whether knowledge of unregistered interest constituted fraud under Real Property Act

Ratio Decidendi

Sale from Bennett to Diplock was genuine, and Diplock's knowledge of partnership's unregistered interest does not amount to fraud. Plaintiffs could not enforce their unregistered interest against Diplock or his executrix. No relief against Bennett under the pleadings in this proceeding.

Court Disposition

Appeal dismissed with a variation

Orders

  • Decree of Harvey J. varied to declare dismissal is without prejudice to further proceedings against Bennett and Johnson, or either of them, on any ground not covered by decision that sale by Bennett to Diplock was not a sham.
  • Appellants to pay costs of appeal.