High Court of Australia
pala lia 4 ?
i
a EA x OLDS.
Appeal dismissed with costs. Order of Supreme Court: varied by directing that the plaintiff
pay to the defendant the costs of the second trial,
BASONS Ft
WHITBRE (OLDS.
ie) . LATHAM C.Je
In this action the plaintiff Hedley D. Whitbread claimed as against the defendant Thomas H. Reynolds damages for the con- version of three horses, Charm Gold, Alfred and Watajoke. They were all foals of a mare named Becharm. The action was tried by His Honour the Chief Justice of Western Australia and the plain- tiff succeeded with respect to the horse Charm Gold but failed as to the horsesAlfred and Watajoke. Upon appeal to this court a new trial was ordered upon theissues relating to Alfred and Watajoke. The new trial was held before His Honour Mr. Justice Walker, who dismissed the action of the plaintiff with respect to Alfred and Watajoke. His Honour regarded himself as bound by the former decision of the Chief Justice to hold that it was established that one Frank Rennie in 1936 or early in 1937 acquired by purchase the brood mare Becharm with a foal (after- wards Charm Gold) at foot. His Honour started from that proposi- tion. Oral evidence was given. His Honour was of opinion that both the plaintiff and the defendant and some of the witnesses lied and that the oral evidence was almost completely unreliable. He found, however, that the defendant had been in possession of the horses and was in possession of the horses at the time when the writ was issued, which was the time in respect of which ownership had to be determined. His Honour also referred to correspondence which His Honour held showed that the plaintiff had not, on occasions when a claim might have been expected, made any claim to the owmership of these horses, the corres- pondence being with the defendant himself. Weight was given to the fact that the plaintiff, though desiring to own and race horses, was a jockey, and was therefore incompetent to own and race horses under the rules of the Turf Club, and therefore that there "had to be" a certain concealment of
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