Coles v Adeney [1914] HCA 19; (1914) 17 CLR 562 (27 March 1914)

HIGH COURT OF AUSTRALIA

Coles and Another Plaintiffs, Appellants; and Adeney Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

27 March 1914

Griffith C.J., Isaacs, Gavan Duffy and Powers, JJ

McArthur K.C. and Bryant, for the appellants.

Mann and Walker, for the respondent, were not called upon.

Griffith C.J.

This is an appeal from a judgment of Hood J. after the trial of an action before him without a jury on oral evidence. The claim was for commission for bringing about a sale of land for the defendant, and the commission is claimed under an alleged special contract that it should be at the rate of 15 per cent. on the price realized. The case depended entirely upon oral evidence, principally that of one of the plaintiffs. The learned Judge came to the conclusion that the real bargain between the parties was that the plaintiffs should be employed as agents to sell the land, and that in the event of the land being sold for £8 an acre, but not otherwise, commission should be paid at the rate of 15 per cent. Although the case was not tried before a jury the principles applicable are not different. When a contract is sought to be made out by oral evidence the question is what is the effect of that evidence. In order to answer that question the Court or other tribunal must be satisfied, first, what were the words used in the conversations which are said to constitute the contract, and, secondly, what is the inference to be drawn from the words used. That is quite a different thing from the credibility of the witnesses. Evidence as to conversations is always uncertain. The Court may think that a witness, with the utmost desire to tell the truth, has made a mistake. It is always a question of fact what was the real bargain made between the parties.

I do not think it desirable, and certainly it is not necessary, to review the evidence at length. It is sufficient to say that upon the plaintiffs' evidence in this case it was certainly open to the learned Judge, or to any other tribunal that might have heard the evidence, to find as a fact that the real bargain was that the payment of commission at 15 per cent. was dependent upon the land realizing £8 an acre. It did not realize £8 an acre. If it was open to the learned Judge to come to that conclusion, the fact that it was open to him to come to another conclusion is quite irrelevant.

I would add for myself that I do not see how the learned Judge could have come to any other conclusion than that to which he did come.

Isaacs J.

I agree that the appeal should not be allowed, and I will in just a few words state why I think so. This case, as has been pointed out by the learned Chief Justice, depends entirely upon oral evidence. The onus of establishing the contract, which is a very special one, namely, to pay commission on a sale of land at the rate of 15 per cent. whatever price happened to be obtained, was one which certainly required distinct proof. Upon the direct evidence of the plaintiffs that would have been very difficult indeed to maintain, and upon that evidence, without more, I should think that the learned Judge would have had no difficulty in saying that the case was not proved. As has been pointed out both by Mr. McArthur and Mr. Bryant, there is evidence given on the cross-examination of one of the plaintiffs which might, if it stood alone, have led a tribunal to find in their favour. But so much depends, not only upon the way in which those answers, the most favourable to themselves, were given to counsel, but also upon the amount of questioning that was necessary in order to extract those answers, that the Judge who heard the witnesses examined and saw and watched them giving their evidence might easily come to the conclusion that the original statement was the more reliable. In those circumstances, although it is our duty as a Court of appeal so far as we can to form our own judgment, yet in a case like the present where, notwithstanding that there was no jury, still the witnesses' demeanour and manner of giving evidence are not before us, it would be impossible, in my view, to reverse the learned Judge's finding. In addition to that, if it is any consolation to the plaintiffs, I may say that if it fell to my lot to decide the question in the first instance, I should come to the same conclusion as the learned Judge.

Gavan Duffy J.

I do not desire to express any opinion as to what result I should have arrived at if it had been to decide the case in the first instance; but otherwise I agree with what has been said by the learned Chief Justice, for the reasons which he has given.

Powers J.

I agree that the appeal should be dismissed for the reasons stated in the judgments which have just been delivered.

Appeal dismissed with costs.

Solicitors, for the appellants, Connelly & Crocker.

Solicitor, for the respondent, A. Phillips.