Lysaght Bros & Co Ltd v Falk (No 2) [1905] HCA 14; (1905) 2 CLR 443 (26 May 1905)

HIGH COURT OF AUSTRALIA

Lysaght Bros. & Co. Ltd. Appellants; and Falk Respondent (No. 2).

H C of A

On appeal from the Supreme Court of New South Wales.

26 May 1905

Griffith C.J., Barton and O'Connor JJ.

J. L. Campbell, for the appellants.

Shand and A. Thomson, for the respondent,

Griffith C.J.

As to the first branch of this application reliance is placed by the appellants upon sec. 26 of the High Court Procedure Act 1903, which is in these words: "Every person in whose favour a judgment of the High Court is given shall be entitled to the same remedies for enforcing it by execution or otherwise—(a) Against the property of the person against whom it is given; and (b) Subject to limitations which may be prescribed by any Rules of Court, against the person against whom it is given, as are allowed, by the laws of the State in which such property is situated or such person is resident, as the case may be, to persons in whose favour a judgment of the Supreme Court of the State is given in like cases." The Rules of Court made under that section are contained in Order XXXV. of Part I. Rule 1 deals with the question of attachment. It provides that "a judgment or order for the payment of money into Court or for the performance of a judgment, order, or writ, by which any person is required to do any act other than the payment of money to some person, may be enforced by writ of attachment." That is a plain statement that orders for the payment of money to a person cannot be enforced by writ of attachment. It is a limitation prescribed by the rule. It cannot be disputed that the order now in question is an order for the payment of money to some person. The point came before the Court of Appeal in England in the case of Bates v. Bates[1], and counsel did not attempt to argue it. Even if this case did not clearly fall within the limitation, I for my part should like to see an instance in which an order has been made that payment of the costs of a new trial motion by the unsuccessful party should be a condition precedent to his being allowed to proceed to trial. It is said that it is the usual practice to do so in New South Wales. I should like to see some distinct authority for that practice if it exists.

We think, therefore, that the motion must be dismissed with costs.

Campbell asked to be allowed to set off these costs against the costs due from the respondent to the appellants. There is no set-off allowed unless an order is made to that effect.

Griffith C.J.

I doubt the necessity for the order; but there should be a set-off.

Motion dismissed with costs. Set-off allowed.

Solicitor, for the appellants, H. C. E. Rich.

Solicitors, for the respondent, Shipway & Berne.

[1] 14 P.D., 17.