Heydon v Perpetual Executors Trustees & Agency Company (WA) Ltd [1930] HCA 26; (1930) 45 CLR 111 (10 September 1930)

HIGH COURT OF AUSTRALIA

Heydon Defendant, Appellant; and The Perpetual Executors, Trustees and Agency Company (W.A.) Limited Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

10 September 1930

Gavan Duffy C.J., Rich, Starke and Dixon JJ.

Goold, for the appellant,

P. O'Dea, for the respondent.

Goold was not called upon in reply.

The following judgments were delivered:—

Gavan Duffy J.

In this case the plaintiff sued for money lent and money received by the defendant as trustee for the deceased. The defendant denied these allegations and said the money was given to her as a gift. At the trial the learned Judge thought that the onus of proving there had been a gift lay on the defendant. We are respectfully of opinion that the burden of proving the facts in support of either one or other cause of action set out in the statement of claim, lies on the plaintiff. The plaintiff's evidence as well as the defendant's was, as a matter of fact, given. Counsel for the plaintiff tells us that he has no further evidence to offer now than he had then. The evidence thus given did not satisfy any of the Judges that in fact any case had been made out, or that the money had been lent, and it does not satisfy us either that any of the allegations made in the statement of claim are correct. In this case, as there is no new evidence available, there is no necessity to inquire whether justice would be done by ordering a new trial. We have, in the circumstances, come to the conclusion that the appeal should be allowed; the order made by the Supreme Court should be set aside; judgment should be entered for the defendant appellant with costs of the action and of the appeal to the Supreme Court of Western Australia and of the appeal to this Court.

Rich J.

I concur.

Starke J.

I agree.

Dixon J.

I concur. In addition to the cases cited during the argument, I desire to mention Aubert v. Walsh[1] as a further authority in support of the view that the burden of proof was upon the plaintiff.

Goold. I would ask for some order directing the return of moneys paid by way of security and moneys paid by way of judgment and costs of the Court below.

Gavan Duffy J.

Of course you are entitled to the recovery of any moneys you have paid under this judgment without it being specially ordered.

Appeal allowed. Order made by the Supreme Court set aside. Judgment entered for the defendant appellant with costs of the action and of the appeal to the Supreme Court of Western Australia and of the appeal to the High Court.

Solicitor for the appellant, L. B. Goold.

Solicitors for the respondent, O'Dea & O'Dea.

[1] [1811] EngR 243; (1812) 4 Taunt. 294; 128 E.R. 342.