Frackelton v Atthow [1909] HCA 76

or

22 HIGH COURT

{HIGH COURT OF AUSTRALIA.)

FRACKELTON . ; q . : . APPELLANT; —

PLAINTIFF, AND ATTHOW AND OTHERS " i ' . RESPONDENTS. © DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

H.C. of A. Costs— Undertaking to pay—Stay.

1909. 's A si " The plaintiff brought an action against certain persons constituting the Brispank, Presbytery of Brisbane, a tribunal of a voluntary religious association, Dee. 12. for one cause of action, and another action against certain persons

representing the Presbytery of Brisbane and the General Assembly of Ga Queensland respectively. 'The actions were consolidated and judgment was Isaacs JJ. given against all the defendants, who were ordered to pay the plaintiff's costs. An application for astay of proceedings pending an appeal was granted on the solicitors for the defendants ''undertaking to pay all costs which, by the judgment of the Court of appeal, are made payable by the defendants or either or any of them to the plaintiff." Qn appeal to the Full Court the defendants failed and were ordered to pay to the plaintiff the costs of the appeal, such costs to be recoverable only out of the property (if any) of the General Assembly and the Presbytery respectively, and not against the defendants or any individual member of those bodies respectively. The plaintiff made an unsuccessful demand for payment of the costs of the appeal to the Full Court from the solicitors who had given the undertaking. Cooper C.J. ordered these costs to be paid, but the Full Court of Queensland held that although the words of the undertaking were wide enough to have covered the costs of appeal, the Full Court never intended and did not order that the defendants personally should pay any costs, and that their solicitors had not incurred any liability on their undertaking. On appeal— 1