Rich v Strelitz Bros and Moss [1906] HCA 68

OF AUSYRALIA. 601

O'Connor to proceed in formd pauperis, and the security was H. C. or A. reduced to £1. The proper method, if the appellant has property pion and should pay the costs, is to apply to have him dispaupered; Brow but we will not grant leave to apply to dispauper, as we think p.7.. this litigation has gone on long enough. You will get the £1

paid into Court.

Griffith C.J.

Appeal dismissed.

. } Solicitor for respondent, &. W. Downes. Cc. A. W. (HIGH COURT OF AUSTRALIA. | RICH . i, 2 i i : . APPELLANT; PLAINTIFF, AND 4 STRELITZ BROS. & MOSS". ' : RESPOND! DEFENDANTS, ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA. Practice—New trial—Trial with jury—Misdirection—Fraud—Amendment of H. C. ov A. pleadings before High Court, 1906.

In an action tried with a jury, the plaintiff sought to have a certain con- oar! tract set aside on the ground of a conspiracy to defraud him. 'The ease was 4, 35 ae left to the jury generally, and they found for the defendants. No objection an aa was taken at the time to the Judge not having put specific questions to the ~ |? jury. Griffith 0.J.,

Barton and Held, that the plaintiff was not entitled to a new trial on the ground of Hixgins, JJ.

misdirection,

Quere, whether, under the circumstances, the plaintiff was, on the hearing of the appeal before the High Court, entitled to amend his pleadings in order to raise a new case suggested to be disclosed by the evidence, and to have a new trial.

By consent, and subject to terms, order of the Supreme Court of Western Australia varied.

A. C. or A.

1906. Riot Co SrRELITZ Bros. anv Moss.

HIGH COURT (1906.

The plaintiff, a dealer in bark, being in difficulties with his bark-stripping contractors and with the firm that was financing him, went to the defendants, Strelitz Bros., for assistance, and was by them referred to the defendant Moss, who helped him out of his difficulties. Moss, who in reality was the agent of Strelitz Bros. in the whole transaction, except for about £500 of his own, exacted from plaintiff very stringent terms in a mort- gage and contemporaneous agreement, controlling the disposal of all bark coming through the plaintiff's hands, and the distri- bution of the proceeds to be derived from selling the bark and from a right of action which the plaintiff had against his former financial backers for not accepting delivery of the bark, which they were under contract to buy from him at a fixed price. After the defendant Moss had advanced about £26,000 in relieving plaintiff, and in obtaining and marketing the bark, tenders were on Moss's advice called for the purchase of the whole quantity in one lot, and the tender of the defendants Strelitz Bros. was accepted for about £17,000, thus leaving the plaintiff heavily indebted under the mortgage and agreement. Plaintiff, having