Bayne v Blake [1906] HCA 54

REPORTS OF CASES

DETERMINED BY THE

HIGH COURT OF AUSTRALIA

1906-1907.

(HIGH COURT OF AUSTRALIA.]

BAYNE AND ANOTHER : zs : . APPELLANTS ; PLAINTIFFS, AND BLAKE AND ANOTHER . a ¢ . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Administration bond—Sureties—Deed of indemnity by beneficiaries—Concealment Wf, C. or A. from Court—Public policy—Solicitor and client—Conjidential relation—Benefit 1906, conferred by client on solicitor—Duty of solicitor—Independent advice—Admin- = —— istration and Probate Act 1890 ( Vict.) (No. 1060), secs. 15-17. Mexvourne,

In an action against sureties on an administration bond which has been Hoe aie

assigned under sec. 17" of the Avministration and Probate Act 1890 (Vict.), September 17. any defence which would be open to the administrator in an action for admin- Gritfith C.J.,

istration in which breaches of trust or devastavits are changed, is open to the fitlith ©, O'Connor JJ.

* Sec. 17 of the Administration and been originally given to him, and shall Probate Act 1890 provides that the per- be entitled to recover thereon as trus- son to whom an administration bond is tee for all persons interested the full assigned, his executors or administra- amount recoverable in respect of any tors, "shall thereupon be entitled to breach of the condition of the said sue upon the said bond in his or their bond." own name or names as if the same had

VOL. IV.

HIGH COURT (1906.

sureties, and any facts which would establish that, as between the beneficiaries and the sureties, the former are not entitled to claim indemnity from the latter, may be set up as a defence.

Where, as a condition to becoming sureties to an administration bond, the sureties, prior to the execution of the bond, demand and obtain from the beneficiaries an indemnity against any liability under the bond, such indem- nity is not ipso facto illegal. Per Grifith C.J. and Barton J.—If the eireum- stances are such that, if the indemnity were disclosed to the Court, the grant of administration might be refused, and that a stipulation that the indemnity should be concealed from the Court ought to be inferred, such a stipulation will vitiate the indemnity.