Elias v Isaacs [1919] HCA 8; (1919) 26 CLR 99 (23 April 1919)

HIGH COURT OF AUSTRALIA

Elias Defendant, Appellant; and Isaacs Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

23 April 1919

Isaacs, Gavan Duffy and Rich JJ.

Loxton K.C. (with him Badham), for the appellant.

Broomfield and Mason, for the respondent,

The judgment of the Court, which was delivered by Isaacs J., was as follows:—

Isaacs, Gavan Duffy and Rich JJ.

This case presents no difficulty whatever. It was an interpleader issue, and the onus of affirming title to the property rested upon the respondent. There was another issue as to a lien, the onus of proof of which rested upon the Great Southern Jewellery Co. No question is now raised as to the finding of the jury on the second issue, and the appeal is confined to the first issue alone. The parties gave evidence, and the jury believed the testimony of the respondent. It is said here that for two reasons the verdict should be set aside notwithstanding that the Full Court of New South Wales has unanimously held the contrary. First, it is said that the evidence of the respondent himself shows that there was an agreement to sell the property, an agreement of such a nature that the property passed to the appellant. Next, it is said that, whatever the evidence shows, the issue was not properly presented to the jury inasmuch as the learned Judge told the jury that, if the document signed by the appellant on 18th December 1917 was part of the transaction, she had no case. It is said that the expression "the transaction" was ambiguous. We think that neither point can be sustained. The first point was a matter for the jury. They had to infer from the evidence what the contract was. As to the second point, there can be no possible ground for thinking that the jury could misunderstand what was the meaning of "the transaction." For these reasons we think that the decision of the Full Court should be affirmed, and that the appeal should be dismissed.

Appeal dismissed with costs.

Solicitors for the appellant, McCarthy & Maxwell.

Solicitors for the respondent, John Williamson & Sons.