Ray v Davigs.

Ray v Davigs. - [1909] HCA 59 - HCA 1909 case summary — Zoe

[42]

buy for £1,000 Kitto's perpetual leases, Sections 16 and 256 in the Hundred of Tipara, and that the defendant accepted the employment. The whole of the transaction on which the plain- tiff bases his claim was conducted orally. The alleged authority was oral, the alleged agreement was oral, and there is not among the documents, so far as I can find, any writing which sustains the claim of the plaintiff. Homburg J. took the oral evidence, and came to a certain conclusion uponit. With reference to that conclusion I quote again the case of Coghlan vy. Cumberland (1), referred to during argument, for this. passage : - " When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions ; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a state- ment is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact, turning on the credibility of witnesses whom the Court has not That case was decided by an authority to which this Court always pays respect, and we have often acted upon the passage quoted. Taking guidance from it, I think that, so far as the conelusions of the learned Judge rest upon the credibility of the witnesses, we should be undertaking a task for which we are not particularly fitted if we were to disturb the conclusions of fact at which he has arrived. As to the conclusions of law, it is perfectly proper for us, if we differ from his legal interpretation of the facts once found, to found our judgment on that difference. In his opinion they constituted a trust, and it is for us so say whether, taking the learned Judge as having come to a right

[45]

It appears that in August 1904 the plaintiff had a conversation with Kitto, the owner of the two perpetual leases, Sections 16 and 256, Section 16 being that which the plaintiff held from Kitto on an agreement to pay £30 a year rent, and Section 256 being the remainder of Kitto's land, which was occupied by one | Bowden. The plaintiff ascertained from Kitto that he was thinking of selling the two sections, for which he wanted £1,000; and obtained from Kitto a promise to give him the first chance of purchasing. Of course that conversation was only admitted to. explain the subsequent conversation between the plaintiff and the defendant which, according to the plaintiff, was as follows: - "I told Harry 'Dick (that is Kitto) is going to sell Go-Ahead, Harry.' Harry said 'Is he? What does he want for it? Isaid_ "£1,000" He said 'It is too much. You had better go down and see Dick and see what you can do about it. It will put you ina very bad place if anyone else buys it.'" Accordingly the plaintiff _ went to see Kitto and obtained his terms, which were £100 deposit, £100 a year, and the balance to bear interest at 7 per cent. Then the plaintiff went and saw his brother again, and as the conversation that then took place is the most material in the case I will read it again : - " Harry asked 'How did you get on with Dick ? I replied 'He wants £100 down, £100 a year and 7 per. cent. interest on the balance.' Harry said 'The interest is too high. You'll never make a do at that. I replied 'Don't you think so" He replied 'No. He then said 'T'll buy the place _ for you. You can have it as soon as you pay me what you owe me. You can then pay me the same rent as you pay Kitto - £30 a year. He then said 'I shall have to make an agreement with you against forfeiting the lease, as it is not allowed to sub-let it. I replied 'All right, PM sign an agreement so long as you'll not enforce it against me. He said 'I will not enforce it, I only hold it to protect myself. He also said 'You have borrowed - from me for the plant, you may as well pay me interest as anyone - else" I then owed him about £120." Whatever the words "for _ you" mean, the defendant was to buy the place for the plaintifi - As soon as the plaintiff paid off what he owed - about £120 - he -

[47]

Then we find that Kitto enters into an agreement to sell the land to the defendant in his own name on 1st October 1904, and the plaintiff offers no evidence that on the treaty for this agree- ment he was even mentioned as the real purchaser. But in con- nection with the transfer there are declarations by Kitto and by thedefendant. The defendant in his declaration says, among other things : - "I am cognizant of and will comply with the conditions of the lease," one of which is not to sub-let the land without the consent of the Commissioner of Crown lands. These transac- tions, so far as the documents are concerned, were conducted wholly in the name of the defendant, and in respect of these and other documents there is no word from which the existence of a trust, or indeed an agency, can be gathered. An agreement for halves was entered into between the brothers on 22nd February 1905, in which the defendant is designated "the proprietor " and the plaintiff "the cultivator." It is an agreement by which the plaintiff agreed to work, farm and cultivate the land for the defendant "at and for the hire and reward and upon the terms and in the manner hereinafter expressed." Then follow terms proper to such an agreement, and amongst them is the follow- ing : - "The proprietor agrees to pay the cultivator as remuner- ation for his services as aforesaid such a sum of money as shall be equal to one-half of the market value of the wheat grown upon the said land under this agreement." The only part of the agreement which can be said to place the possession of any part of the land in the plaintiff, apart from the implied permission to till in performance of his contract, is this : - "Cultivator to have one grass paddock." So that the plaintiff, whether thought- lessly or not, committed himself in that ageeement to expressions from which the only inference that can be drawn - unless the oral evidence takes away its weight from the documentary evidence - is that the defendant in dealing with his brother was

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the proof of the facts to which that law must be applied that the respondent, in my opinion, has failed completely. The whole case turns upon what was the real effect, as both parties understood it, of a conversation between these two brothers, no other person being present, in August 1904, just about three years before the hearing in the Court below. Some things in the case are, I think, beyond controversy. The appellant, who appears to be in comfortable circumstances, had helped his brother in the purchase of agricultural implements, £120 being then owing on a Joan by him for that purpose. I am satisfied that in making the purchase from Kitto he acted from a desire to preserve his brother's home, and that, with the intention of letting him have the farm afterwards on reasonable terms, he took action when he did to prevent the place being sold over his brother's head. The difficulty is to determine in what form he expressed his intention at the conversation referred to. Turning now to the conversation, which I need not repeat in detail, the material words are: "I will buy the place for you." The respondent's case, in reality, rests on the last two words. If they were not used the claim could have no possible foundation. I assume that they were used as the learned Judge has so found. The question is in what sense were they used by the appellant and understood by both parties? Was it, as the respondent contends, in the sense of an undertaking to buy the farm as agent on the respondent's behalf, or was it in the sense of a mere statement of the appellant's intention to buy the farm for himself, with the view of allowing the respondent to have it afterwards at the price paid to Kitto, the amount to be repaid to the appellant on the terms stated ? The remainder of the conversation is consistent with either view. If the appellant had constituted himself a trustee, the terms men- tioned were those on which he was to receive his indemnification. If he had not done so, but had merely stated his intention to let the respondent buy the farm from him later on, those were to be the terms of payment. In either case it would be reasonable that the title should remain in the appellant. The rights of the parties, therefore, must depend on the inference which under all

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