W, living apart from H, asked the court to decide questions as to the will of H’s father, including a determination as to whether H had forfeited a life interest in certain property. Before the application was heard a ‘complex consent order’ was recorded with the court, under which H was to make periodical payments to W and he was left in possession of the subject properties; by consent all proceedings were stayed. H defaulted in making payments. The wife applied for relief, including the appointment of a receiver, in the initial proceedings.
Held: The request was refused. The compromise had gone outside the ambit of the original action, no liberty to apply had been reserved at all, the stay being absolute and unqualified, and the relief was not a mere enforcement of the agreed terms but to modify them to give effect to the original intention in changed circumstances. The original proceedings were ‘now spent and exhausted’. Such an application could not be made by a summons in the original action which was commenced in 1908 by originating summons, but independent proceedings must be taken.
Sargant J
(1913) 108 LT 452
England and Wales
Cited by:
Appeal from – In Re Hearn CA 2-Jan-1913
The parties had settled their action, and the compromise agreement embodied as a schedule to the court order. The claimant now appealed against an order refusing to allow him to enforce the agreement by action within the original proceedings, . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.470616
