WHITBREAD V. REYNOLDS

cae80/45

HL B Dew, Gor, Print, Melb,

= IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WHITBREAD __v._ __ REYNOLDS

ORDER.

Allow te appeal with costs. Discharge so much of the judgment of the Supreme Court as orders that there be no grder as to costs and adjudges that the plaintiff's claim for the value of the horses Watajoke and Alfred or the sum of £610 and for damages be dismissed. In lieu thereof direct that there be a new trial of the action confined to the issues raised by so much of paragraph 3 of the Statement of Claim as relates to the horses Watajoke and Alfred, by paragraphs 4 and 5 thereof and by the defence to that part of paragraph 3 and to paragraphs 4 and 5 aforesaid and by the joinder of issue thereon in the

reply. Order that the costs of the former trial be plaintiff's

costs in the cause.

REASONS FOR JUDGMENT.

WHITBREL REYNOLDS

ITATHAM Code

REASONS FOR JUDGMENT. THAM

WHITBRESD___v REYNOLDS .

The appellant H.D. Whitbread was the plaintiff in an action against the respondent T.H. Reynolds in which the plaintiff claimed delivery of a race-horse Charm Gold and the proceeds of the sale of two other racehorses Alfred and Watajoke. The case was tried before Dwyer C.J. and the plaintiff succeeded with respect to Charm Gold but failed with respect to Alfred and Watajoke. The plaintiff appeals to this court against the decision in respect of the latter two horses.

The appeal raises questions of fact only. The learned trial judge in his reasons for judgment said that he was unable "to give credence to either of the opposing stories of the liti- gating parties" and expressed satisfaction that they had both been disqualified by the racing authorities by reason of the transac- tions with respect to the horses in dispute in these proceedings. The decision in favour of the plaintiff on Charm Gold and against him on the other two horses was based upon His Honour's judgment of the credibility of certain parts of the evidence and upon the general circumstances attending the transactions between the parties. The horses at the time the action was brought were registered for racing purposes in the name of the defendant Reynolds, but His Honour accepted the evidence of the plaintiff that in 1936 one Frank Rennie bought (from the estate of his father Richard Rennie) Becharm, the dam of all the horses concerned, together with Charm Gold, then