Harvey v Edwards Dunlop and Company Limited [1927] HCA 13

Harvey v Edwards Dunlop and Company Limited [1927] HCA 13 - HCA 1927 case summary — Zoe

[10]

An action was brought in the Supreme Court by Edwards, Dunlop & Co. against James Allen Harvey in which, by its statement of claim, the plaintiff alleged that the defendant was at all material times a substantial shareholder in the Inter-State Stationery Manufacturing Co. Pty. Ltd., and that the plaintiff had instituted proceedings against the Inter-State Stationery Manufacturing Co. Pty. Ltd. in the County Court to recover payment for certain goods bought by the Inter-State Stationery Manufacturing Co. Pty. Ltd. from the plaintiff. Certain alternative agreements between the plaintiff and the defendant were then alleged, the only material one being stated as follows (par. 5) : - '' In consideration of the plaintiff agreeing not to proceed to judgment against the Inter-State Stationery Manu- facturing Co. Pty. Ltd. before 28th February 1926, the defendant agreed to himself pay to the plaintiff a sum of £480 0s. 9d., the amount claimed by the plaintiff against the aforesaid Inter-State Co., together with interest thereon at the rate of 8 per cent per annum from Ist March 1925 until payment by forwarding to one Douglas David Urquhart of Dundee, Scotland, solicitor, a power of attorney to make such payment out of the proceeds of sale of certain property of the defendant and by maintaining such power of attorney in full force and effect and abstaining from revoking such power of attorney or doing anything, or failing to do any necessary thing, whereby the said power of attorney might cease to be effective or the said payment might not be made as agreed." 'The plaintiff further alleged that, in reliance on that agreement it did not proceed to judgment but the defendant had failed to pay the sum of £489 0s. 9d. as agreed or at all and had revoked or rendered ineffective the power of attorney. The defendant, by his defence, alleged (inter alia) that there was no agreement in writing nor was there any note or memorandum in writing of it as required by sec. 228 of the Instruments

[11]

HIGH COURT (1927. Act 1915 (Viet.). It appeared that a power of attorney was executed - under seal by the defendant on 6th November 1925 by which he appointed Douglas David Urquhart his attorney and authorized him - to sell certain land of the defendant at Paisley in Scotland and "out of the proceeds . . - to pay to the London office of Edwards, Dunlop & Co. Ltd. the sum of £489 Os. 9d. together with - interest thereon at 8 per cent per annum from 1st March 1925 to the date of payment." Certain correspondence took place between the solicitors for the plaintiff and the solicitors for the respondent, which included the letters set out in the judgments hereunder, and a letter of 28th September 1925 (referred to by Higgins J. in his judgment) written by the defendant's solicitors to the plaintiff's solicitors, which was as follows : - " Dear Sirs - _ Without prejudice - The Inter-State Stationery Manufacturing Co. : Ltd. ats. Edwards, Dunlop & Co. Ltd. - Following our telephone 4 conversation with you on Thursday and your reply that your - clients would not accept the suggestion made but intended to proceed - with the summons herein, we have seen Mr. Harvey, who desires us to again urge that this matter be settled in the manner sugges' We are enclosing herewith for your reference copy letter just received by Mr. Harvey from his solicitors in Scotland together with draft of the proposed power of attorney. Mr. Harvey's property is unencumbered and the sale price would undoubtedly far more than cover your client's claim. If the matter is proceeded with at the present time against the Inter-State Stationery Co. it will only mean their going into liquidation, which we feel certain your clients do not wish. Now that we have taken the matter in hand you can rely - that the power of attorney will be executed without any delay and 4 immediate instructions given to Messrs. Urquhart & 'MeWalter." - The power of attorney was sent to the attorney under power in Scotland, but the plaintiff revoked it before any payment was made - under it.

[40]

Crisp." On their face the letters of 14th October and 4th November refer to the same transaction, namely, a proceeding between Edwards, Dunlop & Co. and the Inter-State Stationery Co. Ltd. This connects the two letters together; and reference to the terms of the letters adds to this connection, for the later letter deals with the very matters spoken of in the earlier letter. Then a power of attorney is referred to, which, upon being examined, is found to authorize the attorney for the appellant to sell certain real property in Scotland and out of the proceeds of sale to pay to the London office of the respondent the sum of £489 Qs. 9d. with interest from Ist March 1925 till payment. Some question arose as to the rate of interest set forth in the power of attorney, for on 5th November the respondent's solicitors returned the power of attorney as requested by the letter of 4th November and stated that "the power of attorney meets with our approval except as to the rate of interest which you have undertaken to alter from 7 per cent to 8 per cent." The appellant's solicitors acknowledged this letter on 7th November and stated that they had altered the rate of interest from 7 per cent to 8 per cent and had forwarded the power of attorney to Scotland. They repeated these statements in a letter ot 9th November written in reply to a letter of respondent's solicitors dated 6th November asking for formal notification of the alteration of the rate of interest and the despatch of the power of attorney. On 18th February 1926 appellant's solicitors wrote to the respondent's solicitors informing them that the instructions given under the power of attorney had reached the solicitors acting in Scotland, and that the property had been sold but that the money could not be handed over until receipt of a disposition executed by the appellant ; and on 24th February they wrote that the disposition had been sent to the appellant's solicitors in Scotland and that " the matter ought to be settled in London by the end of this month." All these letters expressly refer to the same transaction, namely, Edwards, Dunlop & Co. Ltd. and Inter-State Stationery Co. Ltd., and are connected up as a correspondence by reference to preceding letters in the correspondence and by the subject matter dealt with. Finally on 23rd March 1926 the solicitors wrote enclosing consent to judgment under the seal of the company. In these letters,

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Judgment (53 paragraphs)

Cited By (4)