W R Carpenter & Co Ltd v Atkins [1922] HCA 51; (1922) 31 CLR 286 (12 December 1922)

HIGH COURT OF AUSTRALIA

W. R. Carpenter and Company Limited Defendant, Appellant; and Atkins and Others Plaintiffs, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

12 December 1922

Isaacs, Gavan Duffy and Starke JJ.

Broomfield K.C. (with him H. E. Manning), for the appellant.

Evatt (Holman K.C. with him), for the respondents.

The Court delivered the following written judgment:—

Dec. 12

Isaacs, Gavan Duffy and Starke JJ.

This is an appeal from the Full Court of New South Wales, refusing to set aside a verdict for plaintiffs given by Ferguson J., who tried the case as a commercial cause.

The action was brought upon three contracts, and of these there is only one now in controversy, namely, a contract by which the appellant promised to supply a cargo of freight at Sydney to the respondents' vessel the Minnie A. Caine. Originally there was a contract, the result of four written communications in 1918, and dated 16th March, 22nd March, 25th March and 1st April. In consequence of governmental action on the part of the Shipping Board of the United States of America, the contract was cancelled in June 1918. But on 19th August 1918 a new proposal was made by the respondents and accepted by the appellant on 11th September. One of the terms related to the time of loading in Sydney. It was in contest between the respondents, who claimed that the time of loading was "about January-February," and the appellant, who contended it was "January-February."

On 28th February the appellant gave notice of cancellation of agreement on the ground that the ship was still in Melbourne and therefore could not fulfil the engagement. Respondents contested this, and stated that the vessel would be tendered on arrival at Sydney. On 10th March the ship arrived in Sydney, and the appellant was notified of arrival and that it was expected to load a full cargo. Nothing more took place until 17th March, when appellant cabled the respondents in these terms:—"Schoonet Minnie A. Caine. Captain states ready to load 17th March. Shall we endeavour to obtain cargo or will you appoint other agents? Await your reply." The reply on the same date was insistence on appellant supplying a full cargo as per agreement. It did not supply any cargo, and this action resulted. The amount of damages, if there be liability, is agreed on at £6,333 17s. 6d.

The learned trial Judge held that the agreed time of loading was "about January-February," and that the time of actual tender was within that time: and he entered a verdict for respondents. On motion to set aside the verdict and enter a nonsuit or, alternatively, for a new trial, the motion was dismissed. It appeared to us, during the argument upon the appeal, that both parties at the trial so far concentrated their attention on the issue as to whether the agreed time of loading contained, or was free from, the word "about" that the very much more difficult question of the construction of the contract with the word "about" did not receive the consideration necessary to determine satisfactorily the rights of the parties. For instance, the highly important points—(1) the condition of the ship on 10th March with reference to her readiness to load. (2) the real circumstances of the captain's statement as to 17th March, and whether that was a tender on that day or whether it was a reply to a question having another bearing. (3) whether appellant is responsible for any portion of the delay from 28th February to 17th March and (4) whether the appellant dispensed with the tender of the ship for loading—have been left in a purely conjectural state. Learned counsel were not agreed as to the exact understanding at the trial with respect to 10th March or 17th March.

After very careful consideration we do not think any safe or just conclusion can be arrived at for either party on the materials as they stand, and we are of opinion that there should be a new trial. On the whole, we think it undesirable to enter upon any discussion of the law of the case further than to direct attention to the case of Dimech v. Corlett[1].

We think a very apposite precedent for the proper course to be taken in this case is found in Mudie v. Strick & Co.[2]. There, on appeal from Lord Sterndale (then Pickford J.), the Court of Appeal (Lord Cozens-Hardy M.R., Farwell L.J. and Kennedy L.J.) intimated that in their opinion the evidence was insufficient to enable them to decide the question involved; and in the result a new trial was ordered, the evidence given at the previous hearing to stand, and to be supplemented by additional evidence.

We adapt that order to this case and direct that the order dismissing the appeal be discharged, and that, in lieu thereof, the verdict be set aside and a new trial ordered before a Judge of the Supreme Court without a jury, the evidence given at the previous trial to stand, and both parties to be at liberty to supplement it. The costs of the trial, of the motion in the Full Supreme Court and of this appeal to be costs in the cause. Case remitted to the Supreme Court to be dealt with consistently with this judgment.

Order accordingly.

Solicitors for the appellant, Ernest Cohen & Linton.

Solicitors for the respondents, Sly & Russell.

[1] [1858] EngR 874; (1858) 12 Moo. P.C.C., 199.

[2] (1909) 14 Com. Cas., 227.