The Gazette 1983

JULY/AUGUST

19

GAZETTE

Plaintiff attained full age on 3 March 1979. The Court made an Order joining the Underwriters as defendants and in a reserved judgment gave liberty to the Plaintiff to proceed in his own name; extended the time fixed by the Rules for acceptance of the money lodged in Court with the Defence and dismissed the Underwriters Motion. The Underwriters appealed. The Supreme Court held in allowing the appeal that the money paid into Court by the Underwriters never reached the Plaintiff and he never acquired title to it. It remained in Court standing to the credit of the Account specified by the title and serial number of the Action. As the Plaintiff was an infant he could not get any title to it without an Order of the Court (0.22,R. 10 (1)). Approving the dictum of Lord Denning in Kiriri Cotton Co. Ltd., v. Dewani [1960] A.C. 192,204: "The true proposition is that money paid under a mistake of law by itself and without more, cannot be recovered back." (Emphasis supplied); the Court held that in this case subsequent events rendered the lodgment nugatory. By the time an effort was made to establish the Plaintiffs entitlement to the money lodged the Underwriters had established by judicial Order that it was Ryans' fraud that had hoodwinked them into making the lodgment in the first place. The Plaintiff had become a man of full age and was now thoroughly aware of the fraud and of its implications. The money remained with the Accountant of the Courts of Justice in what was virtually a suspense account and the Court would be giving efficacy to a course of fraudulent conduct if it gave an Order sought by the Plaintiff. Appeal allowed to the extent of directing that the money in Court be paid out to the Underwriters and dismissing the PlaintifTs claim to it Considered: Rules of the Superior Courts Cases considered: Nelson v. Larholt [1948] 1 K.B.339; Goodman v. White [1949] 89 Lr.L.T.R.159. Cumper v. Pothecary [ 1951 ] 2 K.B.5 8 and 70. Kiriri Cotton Co. Ltd. v. Dewani [1960] A.C. 192 and 204; Patrick Carey v. W. H. Ryan Limited and Duncan Stephenson McMillan and John Jervois. Supreme Court — 22 February 1982. (per Henchy, J. (Nem.Diss.)) — [1982]. ILRM 121. Franklin J. O'Sullivan

Edited by Gary Byme

Copies ofjudgments in the above cases are available to members on request from the Society's Library.

xx