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GAZETTE
JULY/AUGUST
19
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.
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