Ruse v Bank of Australasia [1918] HCA 63; (1918) 25 CLR 409 (16 October 1918)

HIGH COURT OF AUSTRALIA

Ruse Plaintiff, Appellant; and The Bank of Australasia Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

16 October 1918

Barton, Gavan Duffy and Rich JJ.

Draper K.C. (with him Stone), for the appellant.

Pilkington K.C. (with him Boultbee), for the respondent.

Barton J.

I had not the advantage of being a member of the Bench which heard the first appeal, but I will read a statement prepared by my brother Rich, who was one of the majority of the Court which then directed a new trial:—"When the appeal came before this Court last year an order was made that the case be remitted to the Supreme Court for a new trial, with power to the Judge to allow amendment of the pleadings. The ground upon which this order was based was that the majority of the Court considered that, although no such case was pleaded, on the facts the plaintiff might be entitled as guarantor to a refund of the whole or part of the £1,300 claimed, and to enable the plaintiff to make such a case a new trial was ordered and leave to amend the pleadings granted. The plaintiff has amended his pleadings, but has made no case on the basis of the High Court's order."

In these circumstances we are all of opinion that the appeal ought to be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant, Stone & Burt.

Solicitor for the respondent, C. B. Cox.