Glover v Walters [1950] HCA 1

Glover v Walters [1950] HCA 1

The application for a writ of ne exeat colonia was refused because the plaintiffs' claim, framed as recovery of money after rescission or failure of consideration, was recoverable at law as money had and received and was not shown to be the kind of equitable debt required for the writ; and because the evidence did not provide sufficiently solid grounds to believe that the defendant was departing to avoid the jurisdiction or that the plaintiffs' debt or remedy would be endangered or prejudiced. The High Court action was stayed unless the plaintiffs discontinued the parallel Supreme Court of South Australia action because the writ, if available, would only be incidental to the High Court's...

Jurisdiction
Australia
Procedural Posture
Civil Suit Seeking Rescission, Return of Money or Damages, With Application for Writ of Ne Exeat Colonia / Application by Plaintiffs for Writ of Ne Exeat Colonia; Defendant's Summons to Stay the Action as an Abuse of Process
Outcome
Application for writ of ne exeat colonia refused; High Court action stayed unless plaintiffs discontinue the Supreme Court of South Australia action within one month.
Legal Topics
['writ of Ne Exeat Colonia' 'equitable Debt or Demand' 'departure Beyond the Seas' 'stay of Proceedings' 'parallel Proceedings' 'rescission' 'misrepresentation' 'breach of Warranty']
['equity' 'civil Procedure'] ['writ of Ne Exeat Colonia' 'equitable Debt or Demand' 'departure Beyond the Seas' 'stay of Proceedings' 'parallel Proceedings' 'rescission' 'misrepresentation' 'breach of Warranty']

Case Brief

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Procedural Posture

Civil Suit Seeking Rescission, Return of Money or Damages, With Application for Writ of Ne Exeat Colonia / Application by Plaintiffs for Writ of Ne Exeat Colonia; Defendant's Summons to Stay the Action as an Abuse of Process

Legal Issues

  1. 1 ['Whether the High Court had power to issue a writ of ne exeat colonia in a proper case.' "Whether the plaintiffs' claim for return of £1,541 after rescission or disaffirmance was an equitable debt or demand sufficient to support the writ." "Whether the defendant was about to depart beyond the seas to avoid the jurisdiction or in circumstances endangering or prejudicing the plaintiffs' remedy." 'Whether the High Court action should be stayed unless the plaintiffs discontinued the Supreme Court of South Australia action.']

Ratio Decidendi

The application for a writ of ne exeat colonia was refused because the plaintiffs' claim, framed as recovery of money after rescission or failure of consideration, was recoverable at law as money had and received and was not shown to be the kind of equitable debt required for the writ; and because the evidence did not provide sufficiently solid grounds to believe that the defendant was departing to avoid the jurisdiction or that the plaintiffs' debt or remedy would be endangered or prejudiced. The High Court action was stayed unless the plaintiffs discontinued the parallel Supreme Court of South Australia action because the writ, if available, would only be incidental to the High Court's...

Court Disposition

Application for writ of ne exeat colonia refused; High Court action stayed unless plaintiffs discontinue the Supreme Court of South Australia action within one month.

Orders

  • ['No order for costs on the application for the writ of ne exeat.' 'The action be forever stayed unless the plaintiffs within one month discontinue the action in the Supreme Court of South Australia.' 'The plaintiffs pay to the defendant five guineas costs of the summons.' 'The order on the summons is to be drawn up...