Lysaght Bros and Co Ltd v Falk (No 2) [1905] HCA 14

OF AUSTRALIA. 443

jose to allow these facts to be put before a jury would H.C. or A. to a very large extent, to deprive the appellants of the 19% _ortunity of ever at any time setting up what appears to have — tyssour if the appellants are right in their facts,a palpable fraud on B88, & Co.

ino. tof their agent and collusion on the part of the respondent.

Faux.

iuestion whether the amendment should have been allowed

the amendment becomes unnecessary.

Appeal allowed. Order appealed from dis- charged. Respondent to pay the costs of the motion for a rule nisi and of the appeal. Costs of the first trial to be costs in the cause. Money paid into Court by the uppellants as security for verdict and costs of the first trial to be repaid to appellants.

Sblicitor for appellants, H. C. E. Rich.

Solicitors for respondent, Shipway «& Berne. CA. W.

(HIGH COURT OF AUSTRALIA.)

GHT' BROS. & CO. LTD. 7 ' APPELLANTS ; AND

ALK ResponveEnt (No. 2). ON APPEAL FROM THE SUPR:

NEW SOUTH WALI payment of costs* of appeal—New trial—High Court Procedure _ Aet1903 (No. 7 of 1903), sec. 26 (b)—Rules of the High Court 1903, Part I., | Onder XXXV., v1,

COURT OF

Anorder for payment of the costs of an appeal is an order for the payment.

_ Alinmey to some person within the meaning of Mules ofthe High Court 1903, Ge Pat L, Order XXXV., x. 1. i

O'Connor JJ.

444 HIGH COURT

H.C.

'Therefore, an order of the High Court for payment of the cots of yap from the Supreme Court of a State will not be enforced by attachment,

Nor will the payment of the costs of an appeal in which a new tri 'de made « condition precedent to the new trial,

Morioy for attachment. The appellants were si

pene Rite "High Cottrt;*end the appeal yates costs, ante p. 421. The respondent, without paying the ods the appeal, set down the action for trial, and gave the appe notice of trial for 7th June, 1905. This was a motion by the appellants to the High Court writ of attachment against the