Clarke v Union Bank of Australia Limited [1917] HCA 19

23 C.L.R.J OF AUSTRALIA. 5

L. J. McKean, for the respondent, did not argue that a new trial H.C. or A.

should not be directed. bad : Tre Kine The judgment of the Court, which was delivered by GrirritaC.J., gyrus. was as follows :— Having regard to all the circumstances of the case, the Court are of opinion that the proper order to make is that there should be a new trial. It is obviously undesirable to express any opinion as to the merits of the case. Order appealed from varied by ordering a new trial. Solicitor for the appellant, J. V. Tillett, Crown Solicitor for New South Wales. Solicitor for the respondent, W. D. McMahon, Sydney. ' B. L. E,. @er Agee (HIGH COURT OF AUSTRALIA.] CLARKE AND ANOTHER " 3 a . APPELLANTS ; DEFENDANTS, AND THE UNION BANK OF AUSTRALIA LIMITED — Resronpent. PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF or Gans VICTORIA. i917 Practice (Supreme Court of Victoria)—Specially indorsed writ—Final judgment— yp Arguable defence—Rules of the Supreme Court 1916 (Vict.), Order XIV.,r.1. May 17 ij

Guarantee—Security for mortgage— Mortgagor —Fluctuating advance—War Pre-

cautions (Moratorium) Regulations 1916 (Statutory Rules 1916, No. 284 and Ne, aston .0.5., eases 324), regs. 2, 3, 4. Rich JJ.

H.C. or A. 1917. ~~

CrarKe v.

Unton Bank

or Auvs-

TRALIA Lrp.

HIGH COURT

'The appellants had given a guarantee to the respondent Bank as security for the repayment by a certain company of the principal and interest owing on a mortgage thereafter given by the company to the respondent Bank in respect of an advance then made by the Bank to the company. The liability of appellants upon the guarantee was limited to £5,000. 'The respondent Ba having, by a specially indorsed writ, instituted an action in the Supren Court of Victoria against the appellants upon the guarantee, and having appli for leave to sign final judgment under Order XIV., r. 1, of the Rules of Supreme Court 1916,