HAYES V. COURT & ANOTHER 25/1946 25/1946

6.12280/45

1H, E, Day, Gor. Print., Melb.

REASONS FOR JUDGMENT

Judgment delivered at__Sydney on___Wednesday 2nd April 1947

JUDGMENT. RICH am

DIXON Je McTIERNAN J.

WILLIAMS J.

HAYES Vv COURT AND ANOTHER .

Q@ R D ER.

Appeal allowed. Order of the Full Court of the Supreme Court

discharged and the order of Gevan Duffy J. restored. Order respondent Court te pay costs of the appeal to the Full Court and

of the eppeal to thhs Court.

HAYES ve _ COURT & ANOR.

This is an appeal from an order of the Full Court of the Supreme Court of Victoria reversing a judgment of Gavan Duffy J. His judgment was pronounced on the trial of the action and was for the defendant. In the action the plaintiffs sought a declaration that the defendant was a mortgagee of a piece of land which he had acquired, They sought relief by way of redemption. Alternatively, they asked for a declaration that the defendant held the land in trust.

Briefly stated, the plaintiffs' case was that the plaintiff Court was entitled to exercise an option of purchase obtained in the name of the plaintiff Robins, that since acquiring the option he had expended money on improving the buildings upon the land to which the option related, that, being unable to find the purchase money required for the exercise of the option, he sought the assistance of the defendant, who found part of the money, the plaintiff Court finding the other part, namely £725, that he put the defendant in a position to exercise the option and obtain a' contract, a@ transfer and possession of the property, and that the estate in fee simple which the defendant thus acquired was held by him by way of security for the purchase money he had advanced. This was the way in which the plaintiffs had first put their case, but they have since developed an alternative case to the effect that, even if the plaintiff Court found no money, nevertheless the transaction began as a security and that it had not been established that the equity of redemption was ever destroyed or was acquired by the defendant, who therefore holds the land by way of security and as the plaintiffs' mortgagee.