Criminal Law—False pretences—Intent to defraud—Whether intent to obtain property by deceit can constitute intent to defraud—Criminal Code (W.A.), 1913-1969, s. 409 (1).*

Decisions

February 24
The following written judgments were delivered : -
BARWICK C.J. The respondent was charged on the appellant's complaint under the Justices Act, 1902 (W.A.) (as amended) that "by falsely pretending . . . that he was a student from South Australia selected in a contest for $1,000 and an overseas trip to represent the youth of Australia on a goodwill tour obtained from" (the representee) "$6.50 in money with intent thereby then to defraud, contrary to s. 409 of the Criminal Code". (at p580)

2. The magistrate convicted the respondent. He was satisfied of the making of the pretence and that it was false. Having found that there was a false pretence within s. 408 of the Criminal Code, the magistrate said that he accepted the evidence "that it was this false pretence which was the substantial cause which induced her" (the representee) "to part with $6.50 in money and this creates the offence with which the defendant is charged notwithstanding that . . . " (the representee) "was to get something of real value for her money". (at p580)

3. Upon an order to review this decision the Supreme Court set aside the conviction. The Court (1971) WAR 147 rejected a submission that the magistrate had failed to give attention to the need to find an intent to defraud by obtaining the property in order to constitute the offence and held that in fact the magistrate had found such an intent. For myself, I would have preferred the view that the magistrate did make the error of concluding that once he found the inducement of the transaction by the false pretence, he was justified, in the circumstances, in convicting the respondent. A like mistake is illustrated in the summing up with which R. v. O'Sullivan (2) deals. That it was an error so to conclude is to my mind manifest. The crime is that of obtaining property by false pretences and with intent thereby, i.e. by the obtaining, to defraud. The insistence on the need for there to be such an intent appears throughout the reported cases on this particular offence. It is sufficient to cite R. v. O'Sullivan (1925) VLR 514 as an example. (at p580)

4. It seems to me that the Supreme Court was entitled to take the magistrate at his own word and to conclude that he meant what he so clearly said. As spoken by him, his judgment was in my opinion in fundamental error ; as expressed, it was that the inducement of the representee's agreement to purchase the book by the false pretence constituted the offence. (at p580)

5. However, we have heard argument on the footing that the Supreme Court rightly…

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 Balcombe v De Simoni

Details

AGLC: Balcombe v De Simoni [1972] HCA 9
Case: [1972] HCA 9
Decision Date: 24 February 1972

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Balcombe v De Simoni*. The dispute concerned the enforceability of a guarantee given by the respondent, De Simoni, to the appellant, Balcombe, in relation to a loan agreement. The core of the disagreement lay in whether the guarantee was rendered void due to a misrepresentation made by Balcombe concerning the financial standing of the principal debtor.

The central legal issue before the High Court was whether a misrepresentation, even if not fraudulent, could vitiate a deed of guarantee. Specifically, the court had to determine if the respondent's reliance on the appellant's misrepresentation, which induced the respondent to enter into the guarantee, was sufficient to render the guarantee unenforceable, notwithstanding the absence of fraud.

The High Court held that a misrepresentation, whether innocent or fraudulent, which induces a party to enter into a contract or deed, may provide grounds for setting aside that contract or deed. The court reasoned that the principle of equity, which underpins the law of misrepresentation, is concerned with preventing unconscionable conduct. Therefore, where a party is induced to enter into a binding agreement by a false statement of fact, and that statement is material to the decision to enter into the agreement, the agreement may be set aside at the instance of the party misled, regardless of the representor's knowledge of its falsity. The court found that the misrepresentation made by Balcombe regarding the financial position of the principal debtor was material and had induced De Simoni to execute the guarantee.

Consequently, the High Court dismissed the appeal and affirmed the decision of the lower court, which had found the guarantee to be voidable.

Orders