SALON V. EVANS

ORAL

REASONS FOR JUDGMENT

HE, Dew, Gor. Print, Melb

0.12980/45

SALO. v. [ANS .

Appeal dismissed with costs.

ALO) VAL

LATHAM Code

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales dismissing a motion by the defendant for a new trial in an action for malicious prosecution.

The plaintiff and the defendant made an oral agreement to undertake an enterprise which involved the manufacture of a needling machine and the utilisation of that machine in the manu- facture of pads to be used in the making of mattresses. The dispute between the parties related to the terms of that agreement and to the course of conduct pursued by the plaintiff under the agreement. In fact the plaintiff received the moneys which were earned by the new enterprise (which was, in my opinion, a partner- ship) and paid them into his own bank account, which was in the name of Transausco, the trade name under which he traded. He then used these moneys as he thought proper. It is objected on behalf of the defendant that he should have kept the moneys separate and 'should not have used them for other than partnership purposes. When the defendant found that the plaintiff was not doing this he went to the police authorities and obtained a warrant for the arrest of the defendant upon a charge of stealing partnership moneys. The plaintiff was arrested and was committed for trial but a nolle prosequi was entered. He then brought this action for malicious prosecution. The question which arose after His Honour had ruled that there was no reasonable or proper cause for the eriminal proceedings against the plaintiff was whether the defen- dant did honestly and reasonably believe that the plaintiff had stolen partnership moneys, That question was presented to the court naturally andalmost necessarily as depending upon the deter~ mination of che reiatibnentp between the new partnership and the already established business of Transausco. His Honour referred