Cloverdell Lumber Company Pty Ltd v Abbott [1924] HCA 4

a ver, rors 1983} 2QdR okiesH. ©. or A. 1924, ee) Mexpourny, Mar. 12, 13, ae

Isaacs and Gavan Duffy JJ.

Sasa | he

Financial

poe £ Kew Zealand

faery | at enking 73 ae y2 TRIER

HIGH COURT

[HIGH COURT OF AUSTRALIA.]

THE CLOVERDELL LUMBER COMPANY j

PROPRIETARY LIMITED AND OTHERS | "?PEULANTS: DEFENDANTS, AND ABBOTT s z 5 i a' . . REesponveEnt. PLAINTIFY,

APPEAL FROM THE SUPREME COURT OF VICTORIA.

Practice—Specially endorsed writ—Final judgment—Leave to defend—Money lender— Excessive rate of interest—Rules of the Supreme Court 1916 (Vict.), Order XIV., r. 1 —Money Lenders Act 1915 (Vict.) (No. 2701), secs, 4, 5, 6.

By a specially endorsed writ issued in the Supreme Court of Victoriz. against a company and several persons, the plaintiff claimed against the company a cer- tain sum as being principal, interest and other moneys due under a covenant in a mortgage of land by the company to the plaintiff, and against the other defendants the same sum as being due under an agreement in writing between them and the plaintiff. 'The mortgage. which was in respect of a loan of £3,000, contained a covenant for payment of interest at fourteen per cent per annum reducible to twelve per cent on punctual payment, with a proviso that on default in due payment of interest the principal should forthwith become due, On a motion by the plaintiff under Order XIV. of the Rules of the Supreme Court 1916 (Vict.) for leave to sign final judgment, it was stated in an affidavit by one of the other defendants, who was a solicitor and a director of the defendant com- pany, that the loan was to the defendant company and that the other defendants were guarantors ; that the defendants "are advised" that the amount of the loan " can be raised within a short time " at a lower rate of interest ; that the defendant company agreed to the rate of fourteen per cent, only because it would have lost its interest under certain contracts had it not secured a loan at the time ; that, if the company and its advisers had not considered the rate of interest excessive, the interest in arrear would have been duly met and the present claim would not have existed ; that at a date before the alleged default in payment of interest the company reduced its liability by payment of £600, but that this sum had been wrongly apportioned between capital and interest ;