Ballas v Theophilos [1957] HCA 49

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Ballas v Theophilos [1957] HCA 49

ORDER Objection to the competency of the appeal overruled with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 11 Dixon C.J., Webb and Fullagar JJ.

The respondent in this appeal lodged an objection to its competence. The appeal was instituted as of right on the footing that the judgment from which the appeal was brought was given or pronounced in respect of a matter at issue amounting to or of the value of £1,500 or involved directly or indirectly a claim demand or question to or respecting property or a civil right amounting to or of the value of £1,500. On that footing, of course, an appeal as of right would lie under s. 35 (1) (a) (1) or (2) of the Judiciary Act 1903-1955. The objection denied that the amount at stake, whether par. (1) or (2) of s. 35 (1) (a) be applied, is as much as £1,500.

The appeal is from a judgment of Smith J. given in an action by one member of a partnership of two against the executrix of his deceased partner.

The relief sought in the action by the plaintiff was a declaration that he had exercised an option given by the articles of partnership to purchase the share of his deceased partner and further relief consequential upon the delcaration. The defendant executrix however counterclaimed for the winding up of the partnership, on the footing that the option had not been exercised and that the partnership had been dissolved by death, and for an order appointing a receiver and manager of the partnership business. The judgment, which was pronounced on 14th December 1956, dismissed the action but ordered on the counterclaim that the partnership be wound up and that a receiver and manager be appointed.