MAGNER V. MCELLIGOTT

MAGNER v. McELLIGOTL

JUDGMENT WALSH J.

MAGNER v. McRLLIGOT?

The plaintiff who resides in Queensland has brought this action against the defendant who resides in New South Wales. By her statement of claim she seeks a declaration that she was joint owner with the defendant of two one-fifth share tickets in Mammoth Casket No. 2747 and entitled to half the proceeds thereof. She claims alternatively a declaration that the defendant was a trustee of the said tickets for the plaintiff and himself jointly.

The details of the statement of claim are inaccurate. It was in Mammoth Casket Art Union No. 4797 that a ticket (No. 52728) in. which two shares had been purchased in the defendant's name won the first prize of $30,000, with the result that the defendant became entitled to one-half (not two-fifths) of that prize. At the time when the shares in that ticket were bought three shares in ticket No. 52729 in the same Art Union were also bought in the defendant's name. The fact that five shares were purchased appears to have led to the description of the shares as being one-fifth shares. But in fact they were one-quarter. shares.

Apart from those inaccuracies there were some differences between the allegations in the statement of claim and the evidence given by the plaintiff at the trial. But, in my opinion, these differences are not of such a character that they require that amendments of the statement of claim must necessarily be made if the plaintiff is to succeed or

that they render it impossible for the Court to accept the

plaintiff's account of what happened as being, in substance, a true account.

It is common ground that the plaintiff and defendant arranged that she would travel with him on a journey to Sydney upon which he was about to set out in a truck. He was the owner of the truck and carried goods on it for Teward and the journey was for him an ordinary journey in the course of his business. He had become friendly with the plaintiff and her husband and on occasions he had stayed with them overnight.