Bagnall v White - [1906] HCA 52

4 C.L.K.]

OF AUSTRALIA.

ill the condition in which it would come to her if the tru.stees C. or A.

liad effected no repairs.

A mos

Appeal allowed. Order apjpe(ded frovi dis

F raser.

charged. Judgvient o f Madden C.J.

O'Connor J.

restored w it It certain variations and omitting the order fo r ta.ration of the p la in tif f’s costs and paym ent thereof by the defendants. Liberty to agqdy. Mo'aey i f any pa id by defendants to plaintiff' under judgm ent to be repaid. No order on motions to strike out appeal and to resc 'md special leave.

Solicitor, for appellant, F. H. Tiitldll, Ballarat.

Solicitors, for respondents, Pearson & Mann, Ballarat.

B. L.

[HIGH COURT OF AUSTRALIA.]

BAGNALL

A p p e l l a n t ;

Plaintiff,

WHITE . .

R e s p o n d e n t .

D e f e n d a n t ,

C. or A.

ON APPEAL FROM THE SUPREME COURT OF

1906.

NEW SOUTH WALES.

Sydney ,

Statute o f Frauds (29 Car. II ., c. 3), sec.'i. 3, it—Agreement hy tenant to surrender

leasehold—Executed agreement—Surrender by operation of law—Admissibility

____

of parol evidence—Special leave to appeal—Difficult question o f law—Case Griffith C.J., involving small amoxint—Rescission of special leave. OTonnor JJ.

HIGH COURT

[1906.

H. C. OF A. The appellant brought an action in a District Court (wliich has no equitable J906,jurisdiction) to recover a sum of money which he alleged that the respondent had agreed to pay him upon a contract for the surrender of a lease of land and Baonallgood.s held by the appellant from the respondent. The appellant’s evidence

W h ite .established a case of surrender by operation of law, and, according to the

appellant, there was also a verbal agreement by the respondent to paj’ the sum

claimed in consideration of the surrender.

Objection being taken that the action could not be brought because the agreement alleged came within the words of the 4th section of the Statute of Frauds, and was not in writing ;

Held, that the principle uhich allows evidence to be given of the terms of a verbal lease was not applicable to the case where a surrender might take effect without a writing under sec. 3 of the Statute o f Frauds ; but

Qiaere whether the 4th section of the Statute does or does not apply to the case of an executed contract for the surrender of a lease.

The Supreme Court having held that, though the plaintiff might recover in a suit in Equity, he could not in an action at law, the High Court, having regard to the difficulty of the question arising under the Statute o f Frauds, the fact that the immediate question for determination was one of procedure only, and the smallness of the amount involved, rescinded special leave to appeal.

Dahjarm v. Hannah, 1 C.L.R., 1, followed.

Special leave to appeal from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bagnall v White

Details

AGLC: Bagnall v White [1906] HCA 52
Case: [1906] HCA 52
Decision Date: 30 August 1906

CaseChat Overview and Summary

The Supreme Court of Queensland considered a dispute between Bagnall and White concerning a leasehold agreement. The central issue revolved around whether an executed agreement for the surrender of a lease could be admitted as evidence, despite the lease itself not being formally surrendered by operation of law.

The court was required to determine the legal effect of an executed agreement to surrender a lease where the formal requirements for surrender by operation of law had not been met. Specifically, the court had to consider whether such an agreement was admissible as evidence of the parties' intentions and whether it could operate to extinguish the leasehold interest.

The court reasoned that an executed agreement, even if not giving rise to a surrender by operation of law, could still be admissible to demonstrate the parties' mutual intention to terminate the lease. The principles of contract law and estoppel were applied, with the court holding that the executed agreement, reflecting a clear intention to end the lease, could be relied upon by the parties. The court found that the agreement was admissible as evidence of the parties' intentions and that it could operate to prevent either party from asserting rights inconsistent with the agreed surrender.

The court ordered that the executed agreement was admissible and that the lease was effectively surrendered in accordance with the parties' agreement.

Orders