Land Development Co Ltd v Provan [1930] HCA 19; (1930) 43 CLR 583 (14 August 1930)

Land Development Company Limited Plaintiff, Appellant; and Provan Defendant, Respondent.

The respondent, on a Sunday, entered into a contract with the appellant Company to purchase from it an allotment of land, and the question for decision is whether the contract cannot be enforced against him by reason of the provisions of sec. 1 of the "Act for the better Observation of the Lords Day commonly called Sunday" (29 Car. II. c. 7). The more material parts of this provision are as follows:—"For the better observation and keeping holy the Lords day commonly called Sunday bee it enacted ... that all the lawes enacted and in force concerning the observation of the Lords day ... be carefully putt in execution. And ... that noe tradesman, artificer workeman labourer or other person whatsoever shall doe or exercise any worldly labour, busines or worke of their ordinary callings upon the Lords day or any part thereof (workes of necessity and charity onely excepted) and that every person being of the age of fourteene yeares or upwards offending in the premisses shall for every such offence forfeit the summe of five shillings."

The appellant is a company which sells land in subdivision. Whether it was formed for the purpose of acquiring and subdividing a single piece of land, or whether it carries on a business of land dealing, is not made quite clear by the evidence, but Street C.J., in whose judgment Ferguson and James JJ. concurred, was of opinion that there was enough to show that the Company carried on the business of buying and selling land.

The contract by which the appellant Company agreed to sell a block of land to the respondent was negotiated and made with him on behalf of the Company by an estate agent, and the negotiations were confined to the Sunday upon which the contract was made. In these circumstances, the conclusion that the contract was unenforceable may be rested upon the ground that the Company exercised a calling within the statute or the ground that its agent did so, and that the contract in each case was made in the course of that calling. We think, however, that neither the "calling" of the Company nor that of the agent, comes within those provisions.

The words "tradesman, artificer workeman labourer or other person whatsoever" have received a construction which is settled by authority. We are not at liberty to give to the expression "other person whatsoever" the wide meaning which it might receive in a statute of to-day. It must be taken to refer only to persons who are ejusdem generis with tradesmen, with artificers, with workmen or with labourers: Sandiman v. Breach[1]; Peate v. Dicken[2]; R. v. Cleworth (or Silvester)[3]; Palmer v. Snow[4]. In these four cases drivers of stage coaches, attorneys-at-law, working farmers and barbers were held to be outside the statute. To be a tradesman within its meaning, a man must carry on the business of trafficking in goods; to be an artificer, he must make something; to be a workman or labourer, he must serve. A man is ejusdem generis with tradesmen if his business consists in buying goods, and disposing of them for gain, but not by ordinary sale, as the amusement proprietor did in Hawkey v. Stirling[5], or if it consists in dealing in goods on behalf of others as the broker did in Smith v. Sparrow[6], although the authority of this case has been doubted (Ronald v. Lalor[7]). The Supreme Court were of opinion that those dealing in land (as principals or agents) might be considered as ejusdem generis with traders in goods for the purpose of the statute. In this opinion we are unable to agree. A calling is not struck by the words "or other person whatsoever" unless it closely resembles the callings of tradesmen, &c., specifically mentioned, and unless the resemblance lies in the manner in which the calling is exercised. A lawyer sees a similarity in contracting for the sale of goods and contracting for the sale of land, and in the position of the intermediary, broker or agent, who procures such contracts. But these similarities are not of the kind upon which the application of the statute rests. Land and goods are essentially different, and the practice and conduct of the business of disposing of them must necessarily differ. The analogy required by the statute must be found in the manner in and purpose for which the calling is exercised. The business of broking in goods may perhaps be close enough to the business of trading in them to be ejusdem generis with it. But this assimilation arises from the fact that the business is to deal in the same thing, and in an analogous way. The exercise of the business of land-jobbing has no close resemblance to or connection with trading in goods. It cannot, we think, be considered ejusdem generis with it. Even less analogy is to be found in the business of a land-agent. It is not to the point to compare the business of a commercial broker with the business of a land-agent. To come within the statute the land-agent's vocation must be ejusdem generis with one of the four specified callings. The broker is not one of the four genera mentioned in the statute, and cannot be brought within its provisions unless under the words "other person."

In the Court of first instance, the respondent, who was the defendant in the action, sought an amendment, which was refused, by which he intended to raise another defence, and on the hearing of this appeal his counsel insisted that this amendment should have been made. The appellant, however, by its counsel gave an undertaking not to enforce the contract, and it became unnecessary to consider this matter.

The appeal should be allowed, and the appellant should, pursuant to the condition upon which it obtained special leave, pay the respondent's costs. The order of the Supreme Court should be discharged, and the appeal to it dismissed with costs, and the judgment of the District Court restored. The costs awarded to the appellant by the judgment of the District Court will not be set off against the respondent's costs of this appeal.

Appeal allowed. Appellant, pursuant to the condition upon which special leave was granted, to pay the respondent's costs of the appeal. Order of the Supreme Court discharged, and in lieu thereof appeal to the Supreme Court dismissed with costs. Judgment of District Court restored; but for ever stayed in order to give effect to the appellant's undertaking not to enforce the contract dated 29th July 1929 between the appellant and the respondent. Costs of the appeal to the Full Court and costs awarded to the appellant by the judgment of the District Court not to be set off against the respondent's costs of this appeal.

[1] [1827] EngR 590; (1827) 7 B. & C. 96, at p. 100; [1827] EngR 590; 108 E.R. 661, at p. 662.

[2] [1834] EngR 240; (1834) 1 C. M. & R. 422, at p. 428; [1834] EngR 240; 149 E.R. 1145, at pp. 1147, 1148.

[3] [1864] EngR 157; (1864) 4 B. & S. 927, at pp. 932-934; [1864] EngR 157; 122 E.R. 707, at p. 709.

[4] (1900) 1 Q.B., at pp. 727-728.

[5] (1918) 1 K.B. 63.

[6] [1827] EngR 293; (1827) 4 Bing. 84; at N.P., 2 C. & P. 544; [1827] EngR 293; 130 E.R. 700.

[7] (1872) 3 A.J.R. 12.

High Court of Australia

Land Development Co Ltd v Provan [1930] HCA 19; (1930) 43 CLR 583 (14 August 1930)

HIGH COURT OF AUSTRALIA