Bendigo Historical Society Inc.
Legal record - Transcript of High Court Appeal Philip Cooney v John Thomas Burns, 1921
The hearing of the case of John T. Burns, retired railway employee, of Buckley Street, Essendon v. Philip Cooney, licensed victualler, was concluded in the Supreme Court of Victoria (Bendigo) in June 1921. John sued the defendant for a specific performance of contract regarding the sale of ingoing furniture, etc., of the Limerick Castle Hotel, in Williamson Street, Bendigo. He also claimed the profits of the business from 21 February last to the date of possession.
Burns also applied for an injunction restraining the defendant from disposing of the lease, licence and furniture of the hotel and premises to anybody else.
The defence was that no agreement had been made between defendant and plaintiff for the sale of the hotel lease, although several attempts had been made to bring them to an agreement. Mr Cooney had authorized Mr. J. F. Kelly to sell the ingoing for £750. Burns had offered £650, but the defendant refused to accept that sum. The jury returned a verdict in favour of plaintiff. Judgment was deferred, pending an appeal, it was again heard by the High Court (Melbourne) and the onto the High Court of Australia (Sydney) on a point of law.
The legal principle determined by this appeal is of great importance to buyers and sellers of landed property establishing the rule of law: that a house and land agent cannot, safely sell such property without the authority of the owner in writing, signed by such owner.
It appears that the hotel-owner's agents had organised a sale to of the hotel along with furniture etc. to John Burns. The owner of the hotel Philip Cooney then objected to the sale of the furniture, although at some stage John Burns offered him 650 pounds to cover the items.
The appeal came up for argument before the High Court at its Melbourne sittings on February 20 1922 the hearing extending over four days. Mr. Charles Gavan Duffy (instructed by Messrs. Quick and Luke Murphy) appeared for the appellant, and Messrs; Cohen and Robertson (instructed by Messrs. Macoboy and Taylor); for the respondent.
The last court of appeal, the High Court in Sydney reserved its decision, as follows: The Appeal was allowed, with, costs. Judgment to he entered for the defendant Philip Clooney. The Deposit of £50 to be returned to the defendant.48 Pages - A Court Case involving the Limerick Castle Hotel in Williamson Street, Bendigo - Transcript "on appeal from the Supreme Court of Victoria at Bendigo to the High Court of Australia. 1921 No. 4 between Phillip Cooney (Appellant) and John Thomas Burns (Respondent). Quick and Luke Murphy, Chancery Lane, Solicitors for the Appellant.
The Document contains seven sections:
1. Statement of Claim
2. Defenant's request for further particulars under the statement of claim
3. Plaintiff's further particulars
4. Defence
5. Reply
6. Judge's notes of evidence taken at the trial
7. Plaintiff's Exhibits -
"A" lease, the Trustees, Executors and Agency Company Limited to Appelant
"B" Notice of Application to Transfer Licence of Hotel to Responent, testimonials by Messrs. H. Donovan and J. K. Byrne
"C" Assignment of Lease, Appelant to Responentbendigo, limerick castle hotel, john burns, philip cooney
Bendigo Historical Society Inc.
Bendigo Historical Society Inc.
Bendigo Historical Society Inc.
Bendigo Historical Society Inc.