Hay v Dalgety and Company Ltd [1907] HCA 5

Hay v Dalgety and Company Ltd [1907] HCA 5

The action was one that would have previously been within the equitable jurisdiction of the Court and thus should, by default, be tried by a Judge without a jury unless the Court otherwise orders. The fact that the claim is framed as an action for damages for breach of covenant does not transform it into a common law matter that entitles the plaintiff to a jury trial as of right. There was no sufficient basis to order a jury trial under Order XXXVI, r. 5 or r. 6.

Parties
Appellant, Plaintiff, Mortgagor: Adam Hay; Respondents, Defendants, Mortgagees: Dalgety & Company Ltd.
Jurisdiction
Australia
Judgment Date
26 March 1907
Procedural Posture
Appeal / Judgment on Appeal From Full Court of Supreme Court of Victoria
Outcome
appeal dismissed with costs
Legal Topics
Jury Trial, Breach of Covenant, Order of Realization of Security, Trial With or Without a Jury, Equitable Jurisdiction
Practice and Procedure Equity Mortgages Jury Trial Breach of Covenant Order of Realization of Security Trial With or Without a Jury Equitable Jurisdiction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Adam Hay

Appellant, Plaintiff, Mortgagor

Dalgety & Company Ltd.

Respondents, Defendants, Mortgagees

Procedural Posture

Appeal / Judgment on Appeal From Full Court of Supreme Court of Victoria

Legal Issues

  1. 1 Whether the plaintiff is entitled to have the action tried before a jury or must it be tried before a Judge without a jury
  2. 2 Whether the action is one ‘heretofore within the cognizance of the Court in its equitable jurisdiction’ under the Rules of Supreme Court (Vict.) 1884, Order XXXVI, r. 3
  3. 3 Whether the case involves a prolonged examination of documents or accounts by a jury under Order XXXVI, r. 5

Ratio Decidendi

The action was one that would have previously been within the equitable jurisdiction of the Court and thus should, by default, be tried by a Judge without a jury unless the Court otherwise orders. The fact that the claim is framed as an action for damages for breach of covenant does not transform it into a common law matter that entitles the plaintiff to a jury trial as of right. There was no sufficient basis to order a jury trial under Order XXXVI, r. 5 or r. 6.

Court Disposition

appeal dismissed with costs

Orders

  • The appeal is dismissed with costs