SUPREME COURT.
Friday, 23rd October.
CIVIL JURISDICTION.
Before Mr. Justice Cooper.
Clark and Others v. Mogg.
Mr. Woolcock {instructed by Messrs.
Unmack and Fox) appeared for the petitioners;
there was no appearance of the
respondent.
This was a petition to pay money out
of court.
The petitioners were James Clark, of
Brisbane; Percival Pitman Outridge, of
Brisbane, Edwin Munro, of Thursday
Island, and Horace Bonar Munro, of
Thursday Island. Prior to May, 1896,
the petitioners, together with William
Robert Mogg, defendant, were carrying
on business as pearlers in partnership,
under the style of Mogg, Outridge, and
Co. On the 5th May the partnership
was by a judgment of the court dissolved.
It was ordered that the assets
of the partnership should be sold by public
auction. The plaintiffs and defendants
were given leave to bid. The assets
were sold on the 25th July, and with
the exception of the book debts were
purchased by the petitioners, P. P. Outridge
and E. Munro for £3200. which
sum was now in court to the credit of
the action. At the date of the dissolution
of the partnership the partners were
interested in the following properties :
Out of 3032 shares, Clark, Outridge, and
E. Munro were each entitled to 733
shares; H. B. Munro to 100 shares; and
Mogg to 733 shares. E. Munro was appointed
receiver. The petitioners were
now carrying on business as pearlers in
partnership, under the style of Munro,
Outridge, and Co. All the debts and
liabilities of the late partnership had
been paid, and there now stood to the
credit of the receiver over £1000, which
the petitioners were willing to allow to
remain in court until the conclusion of
the action. The petitioners prayed
that the £3200 in Court might be paid out
to them as follows :—£773 12s. 3½d. each
to Clark, Outridge, and E. Munro, and
£105 10s. 9½d. to H. B. Munro.
Mr. Woolcock mentioned that the assets
were bought back at the reserves
fixed by the court. It was considered
very desirable that the money in court
should be paid out to the petitioners.
All the debts of the old partnership had
been paid. There was nothing owing
by the estate, except to defendant Mogg,
and all business had been completed, except
the receipt of certain money for
the sale of shell in England. The receiver
estimated there would be another
£400 to be paid into court. As authority
for the petition, Mr. Woolcock quoted
Daniels's Chancery Practice, vol. 2, p.
1775.
His Honour said there was no question
in his mind as to the propriety of doing
what was asked.
Mr. Woolcock applied for costs against
the defendant, urging that the whole
proceedings had been rendered necessary
by the sudden departure of Mogg. The
petitioners had been sufficiently demnified
by having their business (which had
been working profitably) upset. Amicable
relations had also existed between
the partners.
His Honour made an order for the
payment of the money out of court;
accrued interest to follow principal; costs
of the action to be paid by defendant
Mogg, and charged against his share of
the funds in court, as well as costs as
between solicitor and client.
The Brisbane Courier,
Saturday 24 October 1896, page 3
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SUPREME COURT
8 March 1897
Clarke and Others v. Mogg.
Mr. J. L. Woolcock (instructed by
Messrs. Unmack and Fox), for the plaintiff
; there was no appearance on the
part of the defendant.
This was a motion for a declaration
that of a sum of £2030 9s. 3d. now standing
in court to the credit of this action
should be disposed of as follows :- The
plaintiffs, James Clark, P. P. Outridge,
and Edwin Munro, £430 10s. 3½d. each ;
the plaintiff, Horace B. Munro, £58 14s.
8½d.; and the defendant, William
Robert Mogg, £1580 3s. 8d.; that the
parties might be at liberty to apply for
the payment of these sums out of
court; that the plaintiffs were entitled
to be paid out of the funds in
court to the credit of the defendant,
their costs of the action fixed as between
solicitor and client; that Edwin
Munro, the receiver and manager appointed
in the action on the 8th May,
1896, should be discharged from his
office, and for leave to apply. The action
had arisen out of the defendant's
failure to carry out the agreement made
by him with the others, who were his
partners. He undertook to take an
active part in the management of the
company's pearlshelling business, but
in October, 1894, he left Queensland,
and had not since returned. In consequence
of his conduct, it was alleged
the plaintiffs had been put to the costs
of the present proceedings.
His Honour expressed the opinion
that the plaintiffs were entitled to costs
on account of the defendant's misconduct,
but he would not grant them as
between solicitor and client. With that
exception, he made an order in the terms
of the motion.
Brisbane Courier 8 March 1897
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