Lubrano v Gollin & Company Pty Ltd [1919] HCA 61; (1919) 27 CLR 113 (17 November 1919)

HIGH COURT OF AUSTRALIA

Lubrano Plaintiff, Appellant; and Gollin and Company Proprietary Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

17 November 1919

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

Leverrier K.C. and Delohery, for the appellant.

Maughan K.C. and Rogers, for the respondent, were not called upon.

Knox C.J.

For the reasons stated by Ferguson J. in his judgment, I think the Supreme Court was right in allowing the demurrer. I desire only to add that the allegations in the declaration of the knowledge of the defendant Company refer only to the parcels of goods of which it is alleged to have accepted delivery, and not to the whole quantity agreed to be supplied.

Isaacs J

. read the following judgment:—

Two points have been taken by the appellant. The first is as to the construction of the contract. That depends on its effect when read as a whole, giving the natural meaning to words that are not technical. When so read, it is a contract for the sale of goods to be shipped from Italy not later than June, with a protective provision in favour of the seller that if by reason of delay through any unavoidable cause he cannot perform his contract, he is not to be bound to compensate the purchasers for his failure. It means that if unavoidable circumstances prevent the performance of the contract as intended, then each is content to stand his own loss and let the matter go. But there is nothing which, fairly construed, ties the purchasers and frees the seller.

The second point is as to waiver. Mr. Leverrier objected to some words in Mr. Justice Ferguson's judgment as to throwing on the defendant the duty of pleading further facts. I do not think his Honor meant to rest his judgment on that proposition. The rest of his judgment is clear.

On a demurrer, or on proceedings equivalent to a demurrer, the law is laid down by Lord Atkinson in Vacher & Sons Ltd. v. London Society of Compositors[1]. He says:—"In a proceeding such as that adopted in this case, which is in truth somewhat of the nature of a demurrer to the statement of claim, the only facts which can be taken as admitted are those which are, expressly or impliedly, averred in the statement of claim itself. Inferences of fact must be drawn by the jury. And no Court can, for the purposes of such a proceeding as this, take as admitted a fact not averred, but which is, in truth, an inference from facts which are averred in the pleading." The difference between an inference and an implication must be borne in mind. An implication is included in and part of that which is expressed: an inference is something additional to what is stated. It may reasonably or even irresistibly follow from what I may call the evidentiary facts, but it is a further conclusion in the nature of an ultimate fact. Now, here there was no allegation of "waiver" as a fact, and, unless it is contained in what is said, as an implication, it is not there at all. It is not contained as an implication because, putting it at the best for the plaintiff, it is not stated that the purchasers when they accepted the shipping documents for portion of the goods knew that the whole of the goods were in the same position. It is not necessary to decide whether that would be sufficient, but, at all events in the absence of the statement referred to, the implication cannot arise. I should, in justice to Mr. Leverrier, say that ultimately he did not contend this point.

Gavan Duffy J.

I agree in what has been said by the Chief Justice.

Rich J.

I agree with the judgment of Ferguson J., subject to the understanding expressed in the judgment of my brother Isaacs with regard to the question of waiver.

Appeal dismissed with costs.

Solicitors for the appellant, Minter Simpson & Co.

Solicitors for the respondent, Sly & Russell.

[1] [1912] UKHL 3; (1913) A.C., 107, at p. 125.