Bagnall v White [1906] HCA 52; (1906) 4 CLR 89 (30 August 1906)

In this case the Court gave special leave to appeal from a decision of the Supreme Court dismissing an appeal from the District Court, in an action brought by the plaintiff to recover a sum of money which he alleged that the defendant had agreed to pay him upon a contract for the surrender of a lease of land and goods which were held by the plaintiff from the defendant, the surrender being a surrender that took effect by operation of law. On the facts as proved before the District Court there was a surrender by operation of law, and, according to the plaintiff's version, there was also an agreement by the defendant to pay the sum claimed in the action in consideration of the surrender of the lease and of the goods included in the bargain. Objection was taken by the defendant that the action could not be brought because the agreement alleged came within the words of the 4th section of the Statute of Frauds, and was not in writing. Mr. Flannery who argued the case very well for the appellant, contended that the principle which allows evidence to be given of the terms of a verbal lease was equally applicable to the case where a surrender might take effect without a writing under the 3rd section of the Statute. The distinction taken by Dr. Cullen for the respondent, however, seems to be a sound one, that, though the 3rd section may operate to make the transaction good as a matter of conveyancing, it does not follow that the agreement can be proved for the purpose of founding an action upon it. That argument for the appellant, therefore, we think, fails. In the case of a lease which is created by parol, the terms of that lease must necessarily be inquired into in order to ascertain the incidents of the estate created by it. But upon a surrender the estate is gone, and there are no incidents to be considered.

But the case was also put for the appellant on another ground, that the 4th section of the Statute does not apply to the case of an executed contract, which undoubtedly this was. In support of that argument very high authority was cited. In Sugden on Vendors and Purchasers, 14th ed., p. 126; 13th ed., p. 101, it is said:—"Although a parol agreement, which is within the fourth section, cannot be enforced before it is executed, yet if the agreement is executed by delivery and acceptance of the subject-matter of the sale, the seller may recover." As authority for that proposition the learned author cites Teal v. Auty[1], and two other cases to which I need not now refer. In that case the Court held that though the plaintiff could maintain his action, the agreement having been executed, he could only do so upon an account stated, and that there must therefore be a new trial to consider the question whether there had been an account stated. But in another case, Seaman v. Price[2], decided in the Court of Common Pleas in 1825, it was held that the plaintiff could recover under circumstances hardly distinguishable from those of the present case. In that case there was in effect an agreement to surrender an interest in land, the agreement having been made by the plaintiff with the defendant's tenant, and the Court held that the plaintiff could recover, but the decision was rested on other grounds. There are other dicta to the same effect by many eminent judges, for instance, in Souch v. Strawbridge[3] (1845) by Tindal C.J., in Lavery v. Turley[4] (1860) by Pollock C.B., though it was not absolutely necessary for the decision in that case, because the Court was dealing with an equitable plea. On the other hand, in Earl of Falmouth v. Thomas[5] (1832) in the Court of Exchequer, Lord Lyndhurst C.B. evidently thought the plaintiff could not recover on the special agreement, but that he could on a quantum meruit. In Cocking v. Ward[6] (1845) in the Court of Common Pleas, there was a count that is not distinguishable from that in the present case, and it was held that the plaintiff could not recover on the special contract, but might recover on an account stated. In Kelly v. Webster[7] (1852) the Court of Common Pleas, on an appeal from a County Court, simply followed Cocking v. Ward[8], by which they thought they were bound. In Sanderson v. Graves[9] (1875), in the Court of Exchequer, Bramwell B. pointed out that the dictum in Souch v. Strawbridge[10] could not be true of all cases within the 4th section, instancing guarantees and contracts in consideration of marriage. Finally in Pulbrook v. Lawes[11], decided in 1876, the cases Cocking v. Ward[12], Kelly v. Webster[13], and Sanderson v. Graves[14] were relied upon, and Blackburn J., commenting on Cocking v. Ward[15] expressed the opinion that it had been decided on a point of pleading, and said he thought that, if the point had arisen after the Common Law Procedure Acts, it would have been otherwise decided. Another case cited to us was Powell v. Jessop[16], in which it was held that in a case like the present the plaintiff was entitled to recover on a quantum meruit for the chattels included in the contract under consideration.

In the present case it is not disputed that, if the plaintiff is entitled to recover at all, he is entitled to recover the amount claimed. The learned Judges of the Supreme Court were of opinion that, according to the practice of this State, in which the several jurisdictions of the Court are kept distinct, the plaintiff could only recover by a suit in Equity.

I have referred to the conflicting decisions on the subject. Indeed it has been said that there is no decision on any point arising under the Statute of Frauds as to which it is not possible to find a contrary decision. It appears to us that the matter is one of very considerable difficulty, and possibly open to be decided either way. That the plaintiff is entitled, if his version of the facts is the true one, to recover his money by a proceeding in some form or other is clear. Then the question arises whether, as this is a matter in which, after all, the only question is as to the form of procedure to be adopted by the plaintiff in order to maintain his claim, it is a matter in which we should give special leave to appeal when the amount involved is less than £30. On the whole, having regard to the principle followed by this Court in Dalgarno v. Hannah[17] we have come to the conclusion that it would not be a proper thing for us to decide such a difficult matter in a case where so small an amount is involved as in this case. We think, therefore, that the proper order is to rescind the special leave.

[1] 4 Mo., 542; 2 B. & B., 99.

[2] [1825] EngR 371; 1 Ry. & M., 195; 2 Bing., 437.

[3] [1846] EngR 565; 2 C.B., 808; 15 L.J.C.P., 170.

[4] [1860] EngR 1085; 6 H. & N., 239; 30 L.J. Ex., 49.

[5] 1 C. & M., 89; 3 Tyrw., 26.

[6] [1845] EngR 970; 1 C.B., 858; 15 L.J.C.P., 245.

[7] [1852] EngR 598; 12 C.B., 283; 21 L.J.C.P., 163.

[8] [1845] EngR 970; 1 C.B., 858; 15 L.J.C.P., 245.

[9] L.R. 10 Ex., 234.

[10] [1846] EngR 565; 2 C.B., 808; 15 L.J.C.P., 170.

[11] 1 Q.B.D., 284.

[12] [1845] EngR 970; 1 C.B., 858; 15 L.J.C.P., 245.

[13] [1852] EngR 598; 12 C.B., 283; 21 L.J.C.P., 163.

[14] L.R. 10 Ex., 234.

[15] [1845] EngR 970; 1 C.B., 858; 15 L.J.C.P., 245.

[16] [1856] EngR 409; 18 C.B., 336; 25 L.J.C.P., 199.

[17] [1903] HCA 1; 1 C.L.R., 1.

High Court of Australia

Bagnall v White [1906] HCA 52; (1906) 4 CLR 89 (30 August 1906)

HIGH COURT OF AUSTRALIA