Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21

Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21 - HCA 1931 case summary — Zoe

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to obtain orders for the respondent and influence business on i behalf within the scope of his appointment. The respondent 1929 terminated the agreement, and the appellant brought an acti against it for damages for wrongfully terminating the agreement at dismissing him as its representative. By its fifth plea the respon justified the termination of the agreement and the dismissal the appellant for that he did not use his best endeavours to ob orders for and influence business on behalf of the respondent accordance with the agreement. But at the trial of the action th parties fought a broader issue, namely, whether the appellant been guilty of misconduct justifying the termination of the ag and his dismissal, and they must now abide by their conduct of trial (Browne v. Dunn (1)). Apart from the express stipula' of the agreement that the appellant would use his best endeav to obtain orders for the respondent, there is no doubt that appellant was bound to render faithful and loyal service to respondent, and not to do anything inconsistent with the continuane of confidence between them. (Cf. Boston Deep Sea Fishing and Ice Co. v. Ansell (2); Pearce v. Foster (3).) The Supreme has stated very fully the uncontroverted facts of the case, a need not recapitulate them. But they show that the appellan quoted a price to a customer of the respondent and accepted an important order from that customer at a price which was contrar to his express instructions, and also suppressed the facts of transaction from the respondent. Further, he endeavoured t persuade this customer not to deal with the respondent at any 0 her price, and to support him against the respondent, whose busi morale he described as not of the highest standard. Such condu¢ is in breach of the agreement, and undoubtedly strikes at the root of that agreement, and it is also wholly inconsistent with the conti ance of confidence between the parties to it. But the action tried before a jury, and, despite this uncontroverted evidence, verdict was given for the appellant for no less a sum than £1, X The respondent moved to set aside this verdict, and that a ver and judgment might be entered for it. The Supreme Court ace:

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executed." The words "except as aforesaid" qualify the whole section, and it is evident that whatever is comprised within them is not vitiated by its provisions. The words refer to the preceding sections, including sec. 25, which allows instruments to be stamped after execution and upon payment of a fine if more than a month has elapsed, and see. 27, which authorizes the reception in evidence of an instrument although there is some omission or insufficiency of the stamp thereon, if the amount of the unpaid duty and the fine payable by law is paid to the officer of the Court. Further, the condition expressed in the section upon which the usefulness of the instrument is made to depend is not introduced by the word " until" but by the word "unless." It is not to be pleaded or given in evidence or admitted to be good, useful or available unless it is duly stamped. The expressions " pleaded," "given in evidence" and "admitted " refer to the use or the recognition of the document or of its operation in judicial proceedings or otherwise, and, I think, would naturally be understood as intending that when by due stamping it. had become pleadable, receivable in evidence and admissible as good, usefuland available, then its validity and operation as from the beginning were to be construed as unaffected by the enactment. It is to be noticed too that the words " duly stamped " include late stamping under sec. 25. There is, perhaps, a little difficulty in applying them literally to the payment in Court of duty together with fine under sec. 27 because the officer does not stamp theinstrument. But it is his duty at once to transmit the instrument to the Commissioner to be stamped. These considerations without more, in my opinion, combine to require an interpretation of the provisions of the Stamp Duties Act 1920-1924 which allows an instrument to receive its full force and effect ab initio, if it is stamped under sec. 25 or if duty and fine are paid under sec. 27. But when to these considerations is added the history of the provisions now standing as secs. 25, 27 and 29 and of their interpretation, it is impossible to doubt that instruments which may legally be stamped after execution, upon due stamping or payment under sec. 27 of duty and fine become in contemplation of law as efficacious from their execution as if they had never fallen within the operation of Sec. 29. Sec. 29 takes its origin in sec. 11 of 5 Will. & M. c. 21, and

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in sec. 59 of 9 & 10 Will. IIT. c. 25; and upon those statutes, in I 2%, the Court of Kings Bench said: "It is every day's practice, that upon payment of the duty and penalty, the writing is made good (R. v. Bishop of Chester (1) ). For the course of legislation si that time, it is enough to refer to sec. 19 of 31 Geo. IL. ¢. 25 10 and 11 of 35 Geo. III. c. 55: sec. 6 of 43 Geo. IIT. c. 126; se 8 of 55 Geo. III. c. 184; secs. 12 and 14 of 13 & 14 Vict. ¢. 97 secs. 28 and 29 of 17 & 18 Vict. c. 125 (Common Law Procedure Act 1854) ; secs. 15, 16 and 17 of 33 & 34 Vict. c. 97 (Stamp Duties Act 1870), and the New South Wales Stamp Duties Act of 1880, s 14. Throughout this course of legislation the Courts have uniform acted upon the view that instruments which may upon payment o a fine be stamped at any time are to be received in evidence enforced although duly stamped after the commencement of th proceedings. In 1805 Lord Eldon said that it "is the judgment of the law ; that, where a paper can be stamped, paying the penalty, it is no objection, that it has not been stamped before the cot ment of thesuit. . . . If the agreementis one, upon which no acti to be brought unless it is stamped, it must be stamped before action brought : but ifit isan agreement, which you may get stamped, pay the penalty, there pending the action it may be stamped; anda cause has been allowed to stand over here upon that distinction. consequence is, that, if the Court is not to act, where there has no been an observance of the revenue laws, neither is it to turn the party round, if, before the suit is over, those laws are complied with " (Huddleston v. Briscoe (2)). In Rogers v. James (3) Gibbs OJ. said that numberless instances have occurred in which a party has been nonsuited because the deed under which he claimed a right 0 action has had an insufficient stamp ; but it has never been contended that after a valid stamp has been put upon it he has not by retro spection a good right of action. In Chervet v. Jones (4) Sir Joh Leach V.C. directed that a suit upon an unstamped instrument should go on, but that before the decree was delivered the instrumen should be produced to the Registrar stamped. The principle w (1) (1725) 8 Mod. Rep. 364; 88 (3) (1816) 2 Marsh. E.R. 260. 7 Taunt. 147); 129 B.

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property situate or to any matter or thing done or to be done i any part of New South Wales, shall, except in criminal procee be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity for any purpose whatsoever, unless it i duly stamped in accordance with the law in force at the time it was first executed." The effect of this section is to set up a gene rule that documents unstamped or insufficiently stamped shall ne be made use of or treated as having any legal efficacy in civil proceedings in the State. But the section commences the words "except as aforesaid." Both the stamping of F instrument after its execution, which is allowed under the conditio set out in sec. 25, and the stamping during the course of a proceeding under the circumstances set out in sec. 27, are oby instances to which the prohibition of sec. 29 is inapplicable. reason why sec. 29 does not " strike with sterility " (Dent v. Mc (1) ) documents which, belonging to the class which may legally be stamped after execution, are discovered at the trial to be unstamped or insufficiently stamped but are receivable in evidence on paymen of the unpaid duty and the legal fine, is that sec. 29 does n t " strike at' such documents at all. ' What is known as the Wagga Finance Case (2) was based on th view that sec. 29 of the Stamp Duties Act debars a docun r unstamped or insufficiently stamped at the time of its tender ina ei action from having any efficacy whatever until the very moment w the full stamp duty is paid. "The new section provides that thi document shall not be pleaded or given in evidence or admitted to be good, useful or available in law or equity for any purpose whatsc ever until it is duly stamped. It seems to me that I am compelle by the decision to which I have just referred to hold that that means that until it was stamped it was not an effective document, that. conferred no rights of any kind and was entirely inoperative. There- fore at the time when this action was brought there was no effectit assignment in existence from which the plaintiffs took any rights. seems to me, therefore, that no amendment would help the plaintifis and that the plaintiffs must be nonsuited " (Wagga Finance Case (3))

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Court

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Before

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Judgment (185 paragraphs)