Dixson Trust Ltd v Beard Watson Ltd [1915] HCA 22; (1915) 19 CLR 499 (31 March 1915)

HIGH COURT OF AUSTRALIA

Dixson Trust Limited Defendants, Appellants; and Beard Watson Limited Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

31 March 1915

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

J. L. Campbell K.C. and Brissenden, for the appellants.

Knox K.C., Shand K.C. and Harry Stephen, for the respondents.

The judgment of the Court was delivered by

Griffith C.J.

This action is in form an action for breach of covenant, the covenants alleged being set out in the first three counts of the declaration according to the pleader's construction of the language of the deed. Upon the first count an interesting question of construction is raised as to the meaning of the covenant as pleaded. We are therefore called upon to construe, not the language of the deed, which is not before us, but the language of the pleader. Upon one construction, the count assigns three breaches of covenant, upon another construction one breach only, and it is contended alternatively that either the whole of the count is bad in substance or that each breach is ill assigned. If that contention were sustained the defendants would be entitled to judgment pro tanto on the declaration without regard to the plea.

With respect to the other counts, the plea demurred to alleges a condition in the deed which as alleged might be construed as showing that the covenants alleged in the declaration were not absolute but conditional, and the Court is invited to construe the condition as so alleged. It is admitted that the plea does not set out any actual language of the deed, and that the condition alleged is sought to be inferred from a proper construction of the whole of the deed. If a decision were given under the present circumstances it would be a decision, not upon the construction of any actual instrument, but merely of the language of the pleader, which may or may not truly represent the meaning of the deed. That would be a very unsatisfactory, and might be an idle, proceeding. The Court should not be called upon to determine anything but the real questions in controversy between the parties, which depend not on the language of the pleader but on the language of the deed.

The Court therefore thought it right to put themselves in the position of the Supreme Court on the argument of the demurrer, and, doing so, suggested that it might have been desirable to adjourn the determination of the issues of law until after the determination of the issues of fact. It may be that the actual facts are not as alleged in the pleadings. It may turn out that one party or the other is entitled to judgment on the construction of the actual deed. Putting ourselves, then, in the position of the Supreme Court, we think that the best course to adopt is to postpone the determination of the issue of law until the issues of fact have been decided. Without, therefore, expressing any opinion as to the correctness of the view of the Supreme Court, but putting ourselves in their position when called upon to exercise a discretion as to whether the questions of law or the questions of fact shall be determined first, we think that the proper order to make is to discharge the order of the Supreme Court so far as it allows the demurrer, and to direct that the hearing of the issue of law be postponed until after the trial of the issues of fact. That will be accompanied by an addition, which the Supreme Court would certainly have made, that either party is to be at liberty to amend as they may be advised, and I think that the giving of such liberty should be understood as an admonition to the parties to amend.

Order appealed from allowing the demurrer to the second plea discharged. Order that the hearing of such demurrer be postponed until after the trial of the issues of fact in the action. Costs of the demurrer to abide the event of the issue of law. Either party to be at liberty to amend as they may be advised. By consent the costs of this appeal will abide the event of the action.

Solicitors, for the appellants, Minter, Simpson & Co.

Solicitor, for the respondents, W. G. Parish.