Heavener v Loomes [1924] HCA 10

Appl don v

i ei) a woe

306 HIGH COURT (1924.

{HIGH COURT OF AUSTRALIA.]

HEAVENER AND ANOTHER . " A . APPELLANTS ; PLAINTIFFS, AND LOOMES AND OTHERS . a 5 . RESPONDENTS. DeEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Mortgage Deed—Action for detinue by mortgagee—Verdict for amount made up of

1924. mortgage debt and interest—Payment by defendant of amount of verdict—Action Soe by mortgagee against mortgagor to recover mortgage debt and interest—Suit in Sypvey, equity by defendant in action for detinue to restrain mortgagee's action—Refusal April 3; of interlocutory injunction—Subsequent payment by mortgagor to mortgagee— May 2. Appeal to High Court—Remedy on appeal. see Jn an action in the Supreme Court of New South Wales by a mortgagee Gayan Dufty, against a firm of solicitors, who had charge of the mortgage deeds, for detinue Starke JJ. of the deeds a verdict was given for return of the deeds or their value, being

the amount of the mortgage debt and interest thereon up to the date of the writ, and also one shilling damages for detention of the deeds. The amount of the verdict was paid by the solicitors. Subsequently the mortgagee instituted an action against the mortgagors to recover the amount of the mortgage debt and interest thereon. A suit in equity against the mortgagee and the mortgagors was then brought by the solicitors, claiming (infer alia) a declaration that they were entitled to the benefits of the mortgage and the use of the mortgagee's name in enforcing the same; alternatively, that the mortgagee should be declared a trustee of the mortgage and of all the rights thereunder for the solicitors ; an injunction restraining the mortgagee from receiving any of the moneys secured by the mortgage or from further proceeding with the action against the mortgagors; and an injunction restraining the mortgagors from paying any moneys to the mortgagee. Interim injunctions, in the terms mentioned, to continue until a fixed date ~