Mann v Hulme [1961] HCA 45

High Court of Australia Dixon C.J. Fullagar, Taylor, Menzies and Windeyer JJ. Mann v Hulme [1961] HCA 45

ORDER Decree of the Full Court of the Supreme Court of New South Wales varied by substituting for the word plaintiffs where it appears in the declaration contained in the decree and in the immediately ensuing order and in the order for payment of costs the words the appellant Ivy Alice Victoria Hulme. Otherwise appeal dismissed with costs.

Cur. adv. vult.

The following written judgment was delivered:—

Aug. 2 Dixon C.J., Taylor, Menzies and Windeyer JJ.

This is an appeal which arises out of a suit brought by the respondent and her late husband against the appellant and one Richardson, whereby declarations were sought that certain sums of money paid to Richardson were held by him and the appellant upon trust for the plaintiffs and for an order that the aggregate sum be paid over to them. The moneys in question were actually received by Richardson who, at the material time, carried on practice as a solicitor in partnership with the appellant but it is not suggested that the appellant took part in or had any knowledge of the dealings with which we are concerned. The respondent's husband died before the hearing of this appeal and she is the sole executrix of his estate.

The partnership practice was carried on under the name of E. R. Mann and Company and the firm had been known to the respondent and her husband for a number of years prior to 1953. This circumstance accounted for the fact that when, in December of that year, Mr. Hulme was gravely ill it was a member of that firm, Richardson, who made his will. For this purpose he visited the respondents' home at their request, obtained his instructions there and forthwith prepared the will in his own handwriting and had it executed. In the course of obtaining instructions Richardson made enquiries of Mr. Hulme concerning his assets and he ascertained that the latter held a number of War Savings Certificates which had matured. Richardson pointed out that the capital sums involved were not earning interest and said that since his firm had many avenues for investing money with various clients at substantial rates of interest the respondent and her husband might, perhaps, think about whether they would like to take advantage of the opportunity which this situation presented. Subsequently, in January 1954, Mrs. Hulme went to the firm's office for the purpose of having her will prepared. There she saw Richardson and it was he who prepared it and arranged for its execution in the firm's office. Later, in May 1954, when Mr. Hulme had partially recovered, he and his wife went to the firm's office where again they saw Richardson. They reminded him of the conversation during which he had discussed the possibility of making investments on their behalf and, according to Mrs. Hulme, Richardson told them that the firm had clients engaged in the building trade who wanted to borrow money on second mortgage from time to time and he offered to invest their money in this way. He said that the building trade was booming at that time and their investments would be quite safe. According to Mrs. Hulme he said that it was his practice to investigate these clients before he made any loans to them and he assured them that their capital would be quite secure. As an added inducement he said that he would be prepared to give his own promissory notes "as an added security" for these investments and there would be no fear or worry as to the safety of their money. The respondents said that they would leave the matter in his hands as they trusted the firm and they thought "that would be quite all right".