Pein Py erect v (HIGH COURT OF AUSTRALIA.}

Pein Py erect v (HIGH COURT OF AUSTRALIA.} - [1919] HCA 11 - HCA 1919 case summary — Zoe

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Knight v. Barber (1) Pollock O.B. says: "I think it is a con- clusion of law, that where parties are making an agreement by parol, and subsequently reduce it into writing, the writing constitutes the contract." So per Parke B. in the same case. So also per Abbott CJ. in Kain v. Old (2). This is subject to the one qualification above mentioned, which is adverted to by Bramwell B. in Wake v. Harrop (3), viz., that the parties have made the document the binding record of their bargain. So too per Blackburn J. in Angell y. Duke (4). The document may be called the evidence of the contract, if you please, but it supersedes all previous communings (Inglis v. Buttery (5) ) and all antecedent parol agreements (Hender- son v. Arthur (6)); and where it is part of their agreement that the bargain shall be contained in writing, and it is in fact reduced to writing, you would be departing from the bargain itself if those terms of agreement were sought for elsewhere. They do not exist elsewhere ; the assent of the parties is given only by their signatures. Consequently, any evidence whatever of their contract must be

evidence of the contents of that document. Whatever, therefore, sec. 15 of the Stamp Duties Act enacts as to the " instrument" may vitally affect the respondent's right to succeed. In the present case the respondent's evidence shows that the bargain between Dent and the company was reduced to writing, that the written agreement was treated as the binding record of their bargain, and the oral evidence refers to no other agreement. If anything could be required to conclude the plaintiff as to the written agreement of 23rd February 1916 being the only agreement of sale, it is the final covenant of the vendor in the deed of surrender. There, under date
28th March 1917, it covenants that it has not impaired its rights under that agreement of 23rd February 1916, and no other is mentioned. The respondent, then, is bound to rely on the written "agreement of sale of 23rd February as the sale by Dent to the company, for which he claims commission.
The other point essential to his case is that the terms of that

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agreement must be proved. The 'written evidence, Exhibits J, K L, prove the acreage, and the verbal evidence proves the identity and the price. There are several objections taken by Dent, but th is one which stands at the threshold: it is that the Stamp Duties Act 1898, sec. 15, is a bar. Apart from authority, the words of the section are quite plain. It says of an "* unstamped instrument " - that is, such a document as the written agreement of 23rd February 1916, on which the respondent's case depends - that, except as to criminal proceedings, it is (1) inadmissible in evidence and (2) not to be available or effectual for any purpose whatsoever at law or in equity. As to its inadmissibility in evidence, no question whatever arises here. The respondent does not contend that it is admissible. It clearly is not. But he contends that so long as he avoids putting the actual document in evidence, and avoids the ordinary course of giving secondary evidence, the law does not impair the validity of the sale. The meaning of the second branch of the enactment, unless controlled by authority, is not open to reasonable doubt. The Legislature by way of securing the payment of the impost for public purposes, which is placed on the instrument, provides in effect that the sanction of law shall be withheld from the acts of the parties until the revenue law is obeyed. It lies at the root of all contractual obligation that the mere convention of the parties - creates no binding tie between them. It is the law operating on their compact - either the common law or some Statute - which - creates the obligatory relation that one can enforce against the other. But here, acting impersonally on the bargain finally embodied in an "instrument," and therefore contained nowhere else, it strikes that - instrument with sterility (to borrow an expression from another - branch of the law) unless and until the public requirement of : taxation has been complied with. Until that has happened, the - instrument (except in criminal proceedings) is not "available" ; and not "effectual " - that is, it has no effect - for any purpose whatsoever at law or in equity: in other words, it cannot be considered as an instrument giving title, or as one which could be made the means of compelling anyone to give title. It is in the - eye of the law a nullity, except for criminal proceedings and, of E

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, whole matter is within the Act. This connotation of " instru- " is well illustrated by the judgment of Parke B. in Hunter v. ke (1). The primary importance in the connotation of the "instrument," as used in this section of the matter written on the material, is shown by the words "available" and " effec- " and by the amending Act (1914, No. 3, sec. 7 (2) ). See also ock v. Delay (2), and R. v. Watts (3) there cited. It follows from what has been said, that once it appears that the document the contents of which are admitted is an " unstamped ment," the admission cannot be received at all, because if it is, e "instrument," in the sense of the recorded transaction,is admitted evidence. The Legislature obviously contemplates that secondary vidence admits the " instrument " by proving the contents, although the piece of material is not present. If that is so, what distinction can be drawn where primary evidence serves the same purpose ? it, in any case, the admission of the fact of its contents does not ake it one iota more or less valid than if it were physically in urt. If by that means the fact of an instrument is brought within the knowledge of the Court, and at the same time the Court made aware that it is what the Act calls an " unstamped instru- "ment" which is sought to be made "available" or "effectual," it is the duty of the Court to withhold the judicial power, which it only exerts by authority of the State, and which in this instance the Legislature has directed shall not be exerted. _ The respondent meets this by saying that it is not sought to make the instrument here "available " or " effectual," because it is not sued on or sought to be enforced. That is a fundamental error, not only according to the primary meaning of the words themselves, but according to the authorities on similar but less stringently worded enactments for over a century. Until 1891 the English Stamp Acts had used the language "admitted to be good, useful, or available in law or equity." On e Acts a principle was laid down by authority of the House of Lords i in 1849, in n Matheson v. Ross (4). It was there held that

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Judgment (133 paragraphs)

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