Jopling v Jopling [1909] HCA 10; (1909) 8 CLR 33 (29 March 1909)

In this case an award made by an umpire was impeached on various grounds which I feel some difficulty in apprehending as applicable to the award in question. The matter arose out of an unfortunate family dispute between a mother and her son. The son had been in possession of the property since his father's death, and had carried on in his father's name the business which his father had carried on. There were disputes between the son and his mother, and finally, on 13th August 1907, an agreement was alleged to have been made for the settlement of all matters in dispute. The mother, however, refused to carry out some of the terms of the alleged agreement, and the son brought an action against her in the Supreme Court claiming specific performance of the agreement and, in the alternative, damages for its breach. The matter was referred to arbitrators. They did not agree, and the umpire made an award, which seems to be based upon the fact, which he found, that on 13th August a verbal agreement had been made between the parties containing six separate stipulations, viz.:—

(1).

That the respondent should pay the appellant £250 in settlement of all claims between them to that date:

(2).

That the respondent should lease to the appellant certain bone mills for a term of five years, with a right of renewal for two further terms of five years each, at a rental of £62 per annum, payable every four weeks:

(3).

That the respondent should lease to the appellant a certain farm for a term of five years, with a right of renewal for a further term of five years, at a rental of £13 per annum, payable every four weeks:

(4).

That the respondent should have the right to inspect the farm, and that the appellant should put the buildings and fences in repair:

(5).

That the appellant should take over the bone mills with the stock in trade and plant and all book debts of the business, and should pay the bank overdraft standing in his father's name:

(6).

That the respondent should not alter the terms of a will which she had made and which was unrevoked.

The umpire also found that the agreement had been partly performed, the appellant having been let into possession of the mills and farm and taken over the management of it on 14th August 1907. He further found that such possession was referable exclusively to the agreement, and that the appellant had altered his position on the faith of the agreement. He awarded that the respondent should specifically perform her part of the agreement and should forthwith execute all deeds and documents necessary to effectuate such agreement, including a covenant not to revoke or alter her will. The submission contained an express stipulation that the arbitrators or the umpire should have power to direct what should be done by either party.

That award is objected to, first, on the ground of uncertainty. The forms in which that objection was put varied. I totally fail to see any uncertainty on the face of it. The main objection seems to be that the day of the commencement of the term of the leases is not stated in the award. Reference was made to Marshall v. Berridge[1], which shows that where an agreement to grant a lease is made, it does not necessarily mean that the lease is to commence from the day on which the agreement is made. Of course it does not. But this is a case of a verbal agreement for a lease followed by a taking of possession in pursuance of the agreement. The obligations arising out of the transaction are partly made out from the agreement itself, and partly to be inferred from the conduct of the parties. The umpire sets out the facts showing the obligations, and then directs both parties to perform the agreement. What agreement? Why, the agreement which results from the verbal promise followed by the giving and taking of possession. All agreements are an expression of a common intent. I do not think that any person reading this award and desiring to find some meaning for it could come to any other conclusion than that the common intent was that the leases were to run from 14th August 1907, the day on which possession was taken, which would be the time from which they would have been made to run if a suit had been brought in a Court of Equity and similar evidence had been given. That objection therefore fails.

Then it is suggested that it does not appear what deeds or documents are to be executed. It is not necessary that any should be executed, although it may be desirable that the leases for five years should be in writing. It may be sufficient for the parties to rely on the award, but if there is any desire for formal leases they must contain the ordinary and usual covenants. What they are are settled by law.

Then it is suggested that it does not appear who is to pay for the deeds. The party who has to prepare deeds has to bear the cost of them in the first place, and, if there is no stipulation for payment by the other party, he cannot be relieved.

I have endeavoured to deal with these points as far as I can apprehend them. Then there are other points. One of them is that the arbitrators rejected material evidence. The case was put in two ways before the arbitrators, first, a claim for specific performance of the agreement, and, in the alternative, for damages. The arbitrators first directed their attention to finding whether there was an agreement. The umpire found that there was an agreement, one term of which was that all matters in dispute at the date of the agreement should be settled by the payment of £250 by the respondent to the appellant. Having found that that was so, it was clearly unnecessary to ascertain what were the disputes and how the sum of £250 was arrived at—and so the parties seem to have treated the matter. It is admitted that there was no dispute as to anything subsequent to the agreement except as matters connected with the carrying out of the agreement. There is no dispute that it was clearly the duty of the arbitrators to inquire whether there was an agreement, and it having been found that there was, there was no necessity to go into anything antecedent to it.

Then it is said that there is no evidence to show that the £250 was agreed to be paid in settlement of all disputes. That objection answers itself. The agreement was that all disputes should be settled by the payment of £250.

An objection was then taken—an objection I confess I cannot understand—that the award did not refer to the terms of the will which the respondent was to covenant not to revoke or alter. It is immaterial what its terms were. The covenant is to be that the respondent will not revoke or alter her will—I suppose that means as far as it is in favour of the appellant. But the terms are perfectly immaterial to the covenant. The learned Judge gave as one of his reasons for judgment that he could not find any means of enforcing this clause as to not revoking or altering the will, but that observation was apparently made on a misapprehension. A covenant may be made to make a will in a particular way or not to alter a will already existing. If that covenant is broken, the remedy is an action for damages against the executors of the covenantor for breach of the covenant. That is no ground for impeaching the award.

It is further objected that there was no consideration (which I understand to mean no separate consideration) for making such a covenant. It seems to me that that is irrelevant. The agreement was made, and it cannot be said that it was without consideration. The Court cannot inquire as to the appropriate consideration for each stipulation taken by itself. It seems to me that all the objections fail, and that the order of the learned Judge should be discharged.

I am of the same opinion. The parties here have chosen their judge—the judge of law and of fact—and they must abide by his decision. We have nothing to do with the question whether the award is or is not satisfactory to the parties. The law gives the Court the right to interfere in certain cases with an award of an arbitrator; one is where the arbitrator has not considered everything material which the parties have submitted to him. Another is where the award is on its face uncertain. It has been alleged that the arbitrator refused to hear material evidence as to matters in difference. To my mind it is quite clear he did not.

I endeavoured to ascertain from Mr. Bryant whether there were any matters in difference which arose between 13th August 1907 and 25th January 1908, the date of the submission to arbitration, and it is plain from his answer that any differences existing at the latter date were as to claims which had arisen out of the previous agreement of 13th August 1907, and were therefore differences which existed on 13th August 1907. The view that the umpire took was that all the matters had really been settled by the agreement of 13th August 1907. Taking that view, it was unnecessary to go into details of differences which had already been settled by the agreement. He came to that conclusion, and that is the basis of his decision. The decision embodied in the award seems to me certain on the face of it.

Matters were referred to by Mr. Bryant which were not expressly and definitely set out in the award, with the result, he says, of rendering the award uncertain. But the award may be rendered certain by applying its terms to the existing circumstances. I am therefore of opinion that the award is certain and that this Court cannot interfere with it.

I quite agree. There were three objections taken to this award. The first was that the umpire had not done his duty because he did not inquire into claims previous to 13th August 1907. One of the matters in dispute between the parties was whether the agreement made on that date included a term that all claims between the parties up to that date should be settled by the respondent paying £250 to the appellant. If that agreement was made it rendered all the previous disputes perfectly immaterial. The umpire found that agreement was made. What, then, had the nature and extent of the previous disputes to do with granting specific performance of this agreement or awarding damages for its non-performance? The hardship would be a hardship of that agreement, not a hardship of the award. Both parties went into evidence, closed their evidence and addressed the arbitrators upon that agreement. The umpire found that the agreement was made, and having so found, all previous differences were swept away and gone for ever, and I cannot see that the umpire had anything more to do with them.

The next objection was that material evidence was rejected as to the making of the agreement. I think that was ultimately dropped. If it was proceeded with, it is answered by the fact that upon the affidavits before us it clearly appears that the case was closed on both sides.

Then as to the uncertainty of the award, I think the mistake the respondent fell into was in supposing that, if she could show uncertainty in the agreement itself apart from all other circumstances, that would be sufficient. That is a mistake, because she undertook to show uncertainty in the award. The case of Marshall v. Berridge[2] established that unless a written agreement for a lease is such that you can find in it expressly or by reasonable inference some date from which it is to commence—some terminus a quo—you cannot enforce it. Applying this to the award, I look at the award and I do not find it impossible to read by way of inference from that award that the lease ordered by the umpire is to commence as from 14th August 1907. He recites that an agreement was made to grant leases of the mills and of the farm for particular terms and with certain other conditions mentioned, and he then finds that the agreement was partly performed by the parties, one giving possession and the other taking possession of the properties, and such possession was exclusively referable to the agreement. After that he orders by his award that the agreement be carried out. The irresistible conclusion, I think, from that is that the commencement of the leases was to be on 14th August 1907. Therefore that objection fails, and that was the really material objection. I therefore agree with what has been said by my learned brothers.

Solicitors, for respondent, Ford, Aspinwall & De Gruchy, for Cuthbert, Morrow & Must, Ballarat.

High Court of Australia

Jopling v Jopling [1909] HCA 10; (1909) 8 CLR 33 (29 March 1909)

HIGH COURT OF AUSTRALIA