Glover v Walters [1950] HCA 1

Glover v Walters [1950] HCA 1

The writ of ne exeat colonia will not issue unless (i) there is an equitable debt or demand not recoverable at law (with exceptions for matters of account), and (ii) there is proven risk to the plaintiff's recovery or to jurisdiction due to the defendant's imminent departure. In this case, the claim is a legal debt (money had and received) for which an adequate legal remedy exists, and insufficient evidence is provided to show risk to the plaintiffs' remedy; therefore, the writ is refused.

Parties
Plaintiffs: Glover and another; Defendant: Walters
Jurisdiction
Australia
Procedural Posture
Application and Summons / Interlocutory Application for Writ of Ne Exeat Colonia and Summons to Stay Action
Outcome
Plaintiffs' application for writ of ne exeat colonia refused; no order as to costs on the application; defendant's summons granted in part.
Legal Topics
Ne Exeat Colonia, Jurisdiction, Duplicity of Proceedings, Equitable Remedies
Civil Procedure Equity Ne Exeat Colonia Jurisdiction Duplicity of Proceedings Equitable Remedies

Case Brief

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Parties

Glover and another

Plaintiffs

Walters

Defendant

Procedural Posture

Application and Summons / Interlocutory Application for Writ of Ne Exeat Colonia and Summons to Stay Action

Legal Issues

  1. 1 Whether the High Court will issue a writ of ne exeat colonia in the present circumstances
  2. 2 Whether the writ can be granted where a legal remedy exists
  3. 3 Whether parallel actions amount to abuse of process

Ratio Decidendi

The writ of ne exeat colonia will not issue unless (i) there is an equitable debt or demand not recoverable at law (with exceptions for matters of account), and (ii) there is proven risk to the plaintiff's recovery or to jurisdiction due to the defendant's imminent departure. In this case, the claim is a legal debt (money had and received) for which an adequate legal remedy exists, and insufficient evidence is provided to show risk to the plaintiffs' remedy; therefore, the writ is refused.

Court Disposition

Plaintiffs' application for writ of ne exeat colonia refused; no order as to costs on the application; defendant's summons granted in part.

Orders

  • Action stayed unless plaintiffs within one month discontinue the action in the Supreme Court of South Australia
  • Plaintiffs to pay defendant five guineas costs of summons, with certificate for counsel