wealth Ge Lid v Sas Hills Pri Hospital v G i 7 les Pty

wealth Ge Lid v Sas Hills Pri Hospital v G i 7 les Pty - [1929] HCA 34 - HCA 1929 case summary — Zoe

[42]

the supervision of the present manager until possession is given and taken. Purchaser has the right to pay off the whole at any time during the 12 months at 6}%. Subject to consent of Commis- sioner. Vendors have right to brand until 31st January 1927. Rates Rents to be adjusted." Some discussion then took place as to the preparation of a contract of sale by solicitors who were to be instructed by the plaintiff. Dalgety & Co.'s representative wrote out two memoranda in the form of letters, which, when completed by signing, were as follows : - " Adelaide, 18th December 1926 [South Australian 1s. duty stamp]. Messrs. Dalgety & Co. Ltd., Adelaide. Dear Sirs - W. N. & Co. - We/I hand you herewith £1,000 pounds _ being portion of deposit on purchase of pastoral property known as Mt. Leonard Station in State of Queensland together with stock and plant for the price of £24,000 on terms as arranged between the _ vendors and the purchasers and we/I agree to sign the contract for sale as soon as same is available. - Yours faithfully, Wm. Naughton & Co. - Witness, Geo. F. Bruce Coulter. I confirm that the sale has been made by Messrs. Dalgety & Co. Ltd. as above. - For Sinclair, Scott & Co. Ltd., 8. B. Sinclair." "Adelaide, 18th December 1926 [South Australian 1s. duty stamp] - Messrs. Sinclair, Scott & Co. _ Ltd., Mt. Leonard Stn., Queensland. Dear Sirs, W. N. & Co. - We/I agree to take over your contract for purchase of Calton Hills cattle plus 7%, interest to date of delivery. - Yours faithfully, _ Wm. Naughton & Co." The alteration from "I " to " we" was made at the defendant's request because he was undecided whether he would form a company to complete the purchase. The defendant returned that day to Melbourne, and he and Dalgety & Co. Ltd. began at once _ to correspond with one another for the purpose of carrying the sale into effect. He commenced by telling them that he might form a company of which his family and another person would be members, he being a guarantor only. They responded with "a sketch of the different matters in connection with the agreement made between Sinclair, Scott & Co. and yourself regarding the purchase of Mt.

[68]

Now, before stating the precise difficulties attending each of the points mentioned, a short sketch of the material facts will be necessary. The appellants were owners of a cattle station in Queens- ~ land, called " Mount Leonard," and in September 1926 placed it in the hands of Dalgety & Co. Ltd. for sale. From October 1926 to 18th December 1926 the parties were in negotiation for a walk-in- walk-out sale and purchase. During those negotiations the respon- dent was expressly informed that in the event of a purchase two _ things would be required by the appellants, namely, (1) that certain Calton Hills cattle recently purchased by the vendors and placed on _ the station under offer would have to be taken over at cost price (letter of 17th November 1926) ; and (2) that there would be a deposit of 10 per cent, balance on completion of delivery, unless extended payments were arranged for (letter of 26th November 1926). Those i were, so to speak, made the basis of the negotiations and stood on record. On 18th December 1926 the respondent met directors of the appellant Company and certain officials of Dalgety & Co. at i Dalgety's office, and further negotiated. The learned trial Judge _ inferred, and I agree with him, that the requirement as to the

deposit was included in the basis of negotiation. His finding inevitably connoted that the defendant had received the letter of
26th November. It could not well be otherwise. Indeed, the : "deposit" itself is specifically mentioned in the signed memorandum, _and is clearly referable to the letter of 26th November 1926, and to nothing else. Then, as Piper J. says, " proposals and counter- proposals were made and noted down, and ultimately plaintiff's directors and defendant came to terms, noted down in a memorandum, exhibit D." That exhibit sets out a number of terms stated in a typically mercantile way, as for instance : - ' Price £10,000 for leases and plant. Leases to be held by vendors until "possession is given and taken. . . . Terms for leases, 1/3rd eash. Balance 12 months, interest 63%. Leases to remain in vendors' names until completion of deal. Terms - Stock - terms for station cattle - 1/3rd cash, balance in 12 months at 64%. Calton Hills cattle . . . to be taken over by the purchaser at the price paid by the vendor." And so on. The evidence for the appellants, uncontradicted and even unchallenged

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by the word "agreement." It is clear to me that the description may be by any reference which the parties in the circumstances would consider capable of satisfactory identification. To apply The - "Teutonia" (1) doctrine to the present case: - With the knowledge - on both sides that a basic requirement of a deposit of 10 per cent - had been stipulated by letter, what other meaning, if exhibit E be - "construed fairly and liberally for the purpose of carrying out the 7 object of the parties" (2), could be attributed to the words "portion _ of deposit," &c., than the stipulation referred to? And in the - same way, what other meaning could be attached to the "terms as _ arranged between the vendors and purchasers" than the term as _ recorded in Coulter's memorandum? As to both these provisions, : they come directly within Lord Cranworth's formulation in Ridgway - v. Wharton, in the House of Lords (3), for altering the opinion he ; had expressed in the Court below (4), a formulation necessarily : framed after grave and careful consideration. It is in these words = A " The authorities lead to this conclusion, that if there is an agreement _ to do something, not expressed on the face of the agreement signed, - that something which is to be done being included in some other 3 writing, parol evidence may be admitted to show what that writing - is, so that the two taken together may constitute a binding agreement within the Statute of Frauds." There is no word in the Lord Chan- a cellor's formulation, nor in his whole judgment, requiring one writing : to be the only document containing the terms, nor excluding it so long as it does in fact contain the terms, and is in some way referred _ to in the signed document. All that is necessary is satisfactory proof _ of identity of a document referred to in a signed document containing - a statement of what is agreed to be done. For instance, in Bawnann v. James (5) the absence of other instructions than the document produced is not stated as a legal necessity, but as a circumstance affecting the conclusion of fact. That is made perfectly clear both by the reference to Ridgway v. Wharton (6) and by the reports of - Baumann v. James in the Law Times and in the Weekly Reporter (7). In both these reports (I quote from the former for the sake of

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Court

Decision date

Before

Source

Judgment (116 paragraphs)

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