Pearson v Swannell [1920] HCA 69; (1920) 28 CLR 390 (9 November 1920)

HIGH COURT OF AUSTRALIA

Pearson Defendant, Appellant; and Swannell Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

9 November 1920

Knox C.J., Isaacs and Rich JJ.

T. P. Power, for the appellant.

S. A Thompson, for the respondent, was not called upon.

Knox C.J.

In this case the appeal rests on two points. The first arises out of the first question decided by the learned Judge apart from the Moratorium Regulations, namely, whether Kemp was authorized to receive from the defendant notice of the exercise of his option to purchase. The learned Judge decided that there was not sufficient evidence of authority, and I entirely agree with his decision. It appears that some conversation took place as to the defendant going to see Kemp if he intended to exercise his option of purchase, but it is quite clear that when the lease was executed a power of attorney was drawn up in favour of Herbert Pottie, appointing him the plaintiff's agent for the express purpose of carrying out the sale of the property and business to the defendant. Herbert Pottie having died in February 1918, the defendant went to see Kemp in October 1918 in reference to exercising his option, and Kemp pointed out that it would be necessary to get another power of attorney from the plaintiff. It is quite clear that at that time neither Kemp nor the defendant regarded Kemp as having been authorized to receive notice of the exercise by the defendant of his option. After the plaintiff returned in April 1919 the conversation between the plaintiff and the defendant, as deposed to by both of them, is quite inconsistent with any idea that the defendant at that time thought that he had finally exercised his option to purchase. That being so, I agree with the finding of the learned Judge on that part of the case.

Then we come to the War Precautions (Moratorium) Regulations. At the trial Mr. Power obtained leave to amend the defence by setting up reg. 10 as extending to the defendant a further opportunity of exercising his option and as affording a reason why the relief claimed by the plaintiff should not be granted. I do not think it is necessary in the present case to express a considered opinion whether a lease such as that in question here, that is, a lease of land containing an option to purchase the land and the goodwill of a business, comes within reg. 10. It is quite clear that the learned Judge decided one of two things, either that this was not a case to which the Moratorium Regulations applied or, if it was, that he would give the plaintiff leave to go on and sue upon the agreement. Whichever way he decided it was a determination on the very issue raised by the amendment of the defence setting up reg. 10. That being so, it is clear that under reg. 8C no appeal lies from the decision of the learned Judge. That is in line with the decision of this Court in Worrall v. Commercial Banking Co. of Sydney Ltd.[1], and that case was not cited to the Victorian Supreme Court in Fletcher v. Skrimshire[2].

I think, therefore, that as far as the appeal turns on the question of the exercise of the option the decision appealed from was right, and that as far as it turns on the question of the Moratorium Regulations we have no right to entertain the appeal.

Isaacs J.

I agree.

Rich J.

I agree.

Appeal dismissed with costs.

Solicitor for the appellant, S. P. Kemp, Taree, by F. C. Petrie & Son.

Solicitor for the respondent, H. E. McIntosh.

[1] [1917] HCA 67; 24 C.L.R., 28.

[2] (1920) V.L.R., 29; 41 A.L.T., 172.