Hume v Monro [1941] HCA 39

65 C.L.R.} OF AUSTRALIA. 351

[HIGH COURT OF AUSTRALIA.]

HUME AND OTHERS 'i : 5 . APPELLANTS ; PLAINTIFFS, AND MONRO AND OTHERS : ' : 5 . RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Praetice—Supreme Court (N.S.W.)—Hquitable jurisdiction—Declaration of right— H. ©. or A. Negative declaration—Argument of preliminary point of law—Want of equity— 1941. Consideration of whole record—Statement of claim disclosing no equity—Assertion SNe of equitable claim by defendant—Hquity Act 1901 (N.S.W.) (No. 24 of 1901), SYDNEY, sec. 10—Administration of Justice Act 1924 (N.S.W.) (No. 42 of 1924), sec. 18 Nov. 17, 18; —Consolidated Equity Rules 1902 (N.S.W.), 7. 165. Dec. 8.

RPeiraaeaciae . . 5 Rich, Starke, The jurisdiction to make a declaratory decree without consequential relief Moliarian acd

under sec. 10 of the Hquity Act 1901 (N.S.W.), as amended by sec. 18 of the Williams JJ. Administration of Justice Act 1924 (N.S.W.), extends to the declaration of the non-existence of equitable rights or interests in the defendant and is not

limited to the declaration of their existence in the plaintiff.

Where a submission of want of equity is argued as a point of law under tule 155 of the Consolidated Equity Rules 1901 (N.S.W.), the court, in order to determine whether an equity exists, may take the whole record into considera- tion and is not confined to the statement of claim. Where the claim is for a declaratory decree negativing the existence of rights claimed by the defendant and no consequential relief is sought, it is sufficient to give to the court juris- diction under sec. 10 of the Equity Act 1901 (N.S.W.), as amended by sec. 18 of the Administration of Justice Act 1924 (N.S.W.), that it appears upon the whole record that the claim which the defendant is making is equitable; it is not necessary in such a case that the statement of claim should disclose that some question of equitable rights or remedies is involved.