Christie v Robinson [1907] HCA 19

Christie v Robinson [1907] HCA 19 - HCA 1907 case summary — Zoe

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the original agreement : - * The above agreement cance mutual consent," and that was signed by the parties, ' The appellants contend that, the contract being rescinded, i became entitled to get back their £500. So much is not by the respondent. The appellants also contend that, rescission of the contract, the person to whom they should for the repayment of the deposit is primd facie the re because, if money is paid to an agent, his principal is p responsible for that money. No doubt that is the general ru law. In this contract Good is described as the agent for vendor, and it is provided that the money is to be paid to agent for the vendor. The appellants say that that is si that the vendor has received the money, that he is no lo entitled to keep it, and that their cause of action is comy The answer made by the respondent to that is that under e 15 it was the duty of Good not to pay over the money te respondent until the title was accepted, and that that clause controls the statement in clause 1 that Good is the agent of | vendor, that it transmutes Good's position from that of agent the vendor to that of a stakeholder, who did not hold the m in the capacity of agent for one party rather than the other. that be so, the respondent's contention is sound, and that
commended itself to Hodges J. The general rule that a principal is the only person who ea sued, and that the agent cannot, is established by the of Lillis vy. Goulton (1), and in accord with the decision. in case are two decisions of the Supreme Court of Victoria: J lan vy. Read (2) and Groom y. Parkinson (3). That w subject to some exceptions. In the case of an auctioneer it) been settled for a long time that, if a deposit is paid bag tioneer, though paid to him as agent for the vendor, he is p ally liable. But it has never been suggested that in such the vendor is not also liable. So that the answer to the qt whether Good is liable to repay the £500 does not conch question whether the respondent is liable or not. 'That that ordinary rule as to an auctioneer needs no authority. He

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sum of £3,000 and the purchasers shall on the signing h pay a deposit of £500 to Mr. William Good as agent for vendor," &e. a If that clause stood unqualified as to the terms upon which h deposit was paid, it would fall within the case of Hillis v. Goull (1). In that case the sale was by auction, but the conditions. sale required the purchaser to pay a deposit to the solicitor "as agent for the vendor and on account of the vendo There was no word in the conditions, nor any cireums modify the condition of payment referred to, and it was the plai duty of the solicitor to pay over or account for the money to! principal the instant he was called upon to do so. Lord Ey M.R. pointed out in the Law Reports (2) that there was nothi in the circumstances to raise any trust between the plaintiff the solicitor, and he said : - *" There was no relation of prineij and agent, and no bailment as between the plaintiff and Jackson In the same report Bowen LJ. said (3): - *It is the same thin so far as the person who pays it is concerned as if it had reae the hands of the principal. If so, it is impossible to treat mon paid under these circumstances and remaining in the hands agent as there under any condition or subject to any relation to the payer." It is apparent that, if the money had been held by the under some condition in relation to the payer, the opinion learned Lord Justice would have been different. His o more fully reported in the Law Jowrnal, which differs not in stance, but is more explicitly, and, perhaps, more clearly expres 'The importance of the case justifies me in quoting his words (4) "When upon a sale of land a deposit is paid by the purchas which is to be returned if the sale goes off, the purchaser m stipulate that the person to whom the deposit is paid shall it, not merely as the agent of the seller, but subject to te regards the purchaser himself; and where that is done, verts the person to whom the deposit is paid into a sta But where no such special agreement, express or implied, ism

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that the deposit should be paid to the defendant "as agent vendor." The vendor's executrix claimed to have the deposit p over to her; the defendant refused on the ground that he w; entitled to retain it until completion of the purchase. The tract contained no provision for retention, and on this ground th plaintiff succeeded. Hrle C.J. said (1): - *He (the defendan clearly owes no duty to the purchaser." Willes J. said the dition was "the same as if it had been provided that the d should be paid into some bank to the account of the ve His Lordship's simile meant, of course, that the vendor cou have immediately deawn out the money and spent it. That case also seems to stand in marked contrast to the now under consideration. But there are other cases which a strong analogy to the present instance in point of principle. In Edwards vy. Hodding (2), an auctioneer received a depo on property sold by auction, and actually paid the deposit over to his principal. But he paid it over with knowledge that there were objections to the title, and was held liable to repay deposit to the purchaser. Chambre J. said (3) : - * This is not absolute payment by the plaintiff to the defendant as th vendor's agent, but a conditional payment; or, as it is properly called, a deposit. The defendant receives it, knowin the condition, that there should be a good title; and he kno that that condition is not performed: he nevertheless takes | 7 himself, with this knowledge, to pay over the money, which h was not warranted in doing; and therefore the judgment mu be for the plaintiff" In the report of the same case, but on th application for the rule nisi, Gibbs C.J. says (4) : - * Has it ev been decided that an auctioneer is at liberty to pay over th money immediately? It is not paid to him for the use of the principal, but it is placed in his hands as a deposit, to be p over, when his principal shall have made out a good title. W situation would the purchaser be in, if this were otherwise ? goes to the auctioneer, as to a solvent person, often y knowing who is the vendor, on the faith that a good title wil be made: and if the auctioneer might pay over the depo

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that where a party is offered the opportunity of obtaining a stakeholder and refuses to accept him, but insists on retai one originally chosen, he must bear the responsibility in case , loss. Lord St. Leonards thus states the rule in his Vendors an Purchasers, 14th ed., at p. 52 : - *" And a loss by the insolvene y the auctioneer will, it seems, in every case, fall on the vendor, wl nominates him, and whose agent he properly is." . But these considerations give rise to issues of fact that never been raised, and require for their determination te: that has never been thought necessary to adduce. 4 It seems to me unfair to the defendant now to depart from one clear cut issue upon which the plaintiffs' case was rested an denied, and, applying the rule in Annesley v. Muggridge (1) other cases of that class, or even construing the contract wii view of holding the defendant responsible for the mere failure Good to restore the plaintiffs' deposit on demand, independer of insolvency (as to which latter construction I offer no o to treat the action as one for damages, fixing the amount at th sum represented by the deposit, without any issue as to de upon or refusal by Good, or his financial ability, or as to other of the elements of liability considered essential in the ea referred to. Upon the facts as they appear outside the written contract objections I have alluded to are more than technical, because Goc was apparently the selection of the plaintiffs, and therefore th defendant, to whom he was a stranger, should at least have tl opportunity of testing the facts and forcing the plaintiffs t satisfy the Court why they did not press the gentleman s chosen by them to retain their deposit, and why he did not it. '9 Some reliance was placed upon clause 5 of the agreement aiding the plaintiffs' construction that the money was to be regarded as already in the defendant's hands. In addition to th reasons already given, it appears to have been framed to limit t defendant's liability as laid down in Rowe v. May (2).

At a glance

Court

Decision date

Before

Source

Judgment (126 paragraphs)