Caldwell Brothers v Cobbledick [1912] HCA 38; (1912) 14 CLR 719 (4 June 1912)

HIGH COURT OF AUSTRALIA

Caldwell Brothers Plaintiffs, Appellants; and Cobbledick Defendant, Respondent.

H C of A

On Appeal from the Supreme Court of South Australia.

4 June 1912

Griffith C.J., Barton and Isaacs JJ.

Cleland for the plaintiffs.

C.J. Griffith delivered the judgment of the Court:—

Griffith C.J.

The point sought to be raised turns upon the provisions of sec. 108 of the Local Courts Act 1886, which requires payment to be pleaded specially as a defence. In an action on a contract alleged to result in a debt, if the defendant admits the debt but says that he has discharged it, that is a plea of payment. If he does not admit that the debt ever existed that provision has no application. The plea of payment is a plea in confession and avoidance. It admits that the liability once existed but says that it has been discharged. The question in this case was whether the liability ever existed. The contract was one which did not create the liability set up until a particular event happened and it was therefore part of the plaintiff's case to show that that event had happened by non-payment of an instalment. A plea of payment of the instalment in such a case is not a plea in confession and avoidance, but a traverse of the performance of a condition precedent. The provision of the Local Courts Act had therefore no application and the decision of the Supreme Court was quite right. In sec. 108 of that Act the word "transaction" applied to the case of an action of debt includes the whole transaction up to the time when the objection to pay arises. Under the Statute the mere appearance puts all that in issue. Leave to appeal must be refused.

Leave to appeal refused.

Solicitor, for the appellants, E. E. Cleland.