Chard Holdings Pty Ltd & Anor v Ross McCartin Realty

[1990] HCATrans 151

~ ~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl3 of 1990

B e t w e e n -

CHARD HOLDINGS PTY LTD and

PHILLIP ARTHUR CRONIN

Applicants

and

ROSS McCARTIN REALTY

Respondent

Application for special leave

to appeal

BRENNAN ACJ
DAWSON J

GAUDRON J

Chard

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 29 JUNE 1990, AT 10.55 AM

Copyright in the High Court of Australia

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MR F.L. HARRISON, QC:  May it please the Court, I appear with

my learned friend, MR M. STEWART, for the applicant.

(instructed by Deacon & Milani)

MR J. WEBB:  It if please the Court, I appear with my learned

friend, MR G. MARTIN, for the respondent. (instructed

by Wilson Ryan Grose)

BRENNAN ACJ:	Yes, Mr Harrison.
MR HARRISON:	May it please the Court.  The applicant in this

matter suffered judgment for commission at the suit
of a real estate agent. There are some matters

which we submit justify the grant of special leave.

The first matter which, in our submission, justifies

the grant of special leave is the introduction by the

Full Court in this matter of a test of effective

cause in a case where the agent initially has brought

the parties together but the sale would not have

completed but for the intervention of some subsequent
cause or agency or whether there was any substantial
break in the negotiations between the parties.

It is our submission that before this decision the law in Queensland was clearly enough settled by

the decision of the Full Court in BRADLEY V ADAMS,

(1989) 1 Qd R 256, copies of which I seek to hand up

but I do not propose to refer to immediately.

GAUDRON J: Whatever the test, though, Mr Harrison, are there

any issues other than what were the terms of the

engagement and was that engagement carried out?

MR HARRISON: 

Yes, there are issues. When one is dealing with

the question of effective cause such as here, where
there has been an intervention of - where one can
say that the agent has not effected the sale in the

sense that, as happened here, the date for completion

arrived and His Honour the trial judge held that the
purchasers were not able purchasers, one then-

GAUDRON J: You are assuming that one of the terms of the

engagement was that they effect the sale?

MR HARRISON:  Yes. We are, in effect, adopting the analysis

that - - -

GAUDRON J: But we do not know what the terms of the engagement

were, do we? There are no precise findings about

that.

MR HARRISON:  The trial judge's findings at page 57, line 10,

is that:

the plaintiff was authorised to list the motel

for sale -

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and that is as far as it goes. That is not, with
respect, unusual. It is the sort of thing that one
ordinarily finds. Although I appreciate that one of

my problems is that we are dealing with a particular

case, a judgment such as this is likely to be
applied across the board, notwithstanding that

futu:r;e courts will be dealing with whatever particular

woro.s were used.

BRENNAN ACJ:  Yes, but let us identify what the facts are which

raises the principle, and the first question is: what

was the contract?

MR HARRISON:	The contract between the principal and the agent?
BRENNAN ACJ:	Yes.

MR HARRISON: In our submission was to find a purchaser who would

purchase from the principal the property that was

listed with the agent for sale. If, the only evidence

is that the agent was authorized by Chard Holdings,

the applicant, to sell the property, then in our

submission that is the extent of the contract.	He is
authorized or engaged to find a purchaser of the property who will purchase from the principal.

BRENNAN ACJ:  Did it include a warranty that the principal owned

the property?

MR HARRISON:  I would submit that one would not imply such a

warranty, no, Your Honour.

BRENNAN ACJ:  How else could the agent sell that which was not

owned?

MR HARRISON:	The agent is not engaged to sell in the sense of the agent being a vendor, the agent is engaged to
procure a contract between the vendor and the - - -
BRENNAN ACJ:	How could the ag.ent procure a contract for the sale

of property which the principal did not own?

MR HARRISON:  He can procure the entry into the contract of

sale simply because that is what the principal - the principal may enter into the contract, though he not

be the owner of the property. And it is not uncommon,

for example, the principal may enter a contract to sell, expecting that the principal willloe able to

get the property in, for example. There is no - - -

BRENNAN ACJ:	How could the agent earn his commission if, on the contract which you postulate, the principal never
owned and never acquired the ownership of the property?
MR HARRISON:	In the case that I am postulating where the

principal intended to acquire the property but

failed to acquire it, the conclusion we would submit

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would be that the agent would not have earned the commission on the law as understood in Queensland

and as I understand it in New South Wales, perhaps

different in Victoria, if the sale was not in fact

completed, because one does not imply a warranty

that the principal is under an obligation to do all
things necessary to ensure that the agent can earn

his-commission, as was held by the House of Lords in

LUXOR (EASTBOURNE) V COOPER, (1941) AC. If the agent

wants to stipulate some such warranty, then the agent

of course can do so in his contract. But it is not

for the court, in our submission, to fill out a

contract in the case of agents who are willing to

proceed on the flimsiest of engagements such as one

has here.

BRENNAN ACJ:  But it does rather illustrate the need for

precision in the understanding of the terms of the

contract, does it not?

MR HARRISON:  In our submission, it is not a matter of - one

cannot get the sort of precision that would be

desirable, for example, if one were advising the

parties before the transaction, if the parties

themselves have not endeavoured to get that precision.

If they have simply used imprecise words such as "you

are authorized to list the property for sale", the

question is whether the court will go further and imply

terms which they could have specified but did not or

whether - - -

BRENNAN ACJ:	Then when the case comes to court it is necessary to construe those broad terms and to give them the
precision that is necessary to the resolution of the
case. Where. here do we find that finding as to
what the terms of the contract were?
MR HARRISON:	I am sorry, I did not - - -

BRENNAN ACJ: Where he:redo we find, in the findings of the

court below, the construction of the broad terms used

by the parties which would allow the resolution of

this case?

MR HARRISON:  We find the finding which we submit is a wrong

finding - we find the finding at page 57 that I

mentioned before of the actual engagement - that is:

the plaintiff was authorised to list the motel

for sale -

One finds an interpretation of those words which

place a much broader meaning on them than we submit

they would carry and the Full Court in BRADLEY V

ADAMS declined to make a similar interpretation,

similar broad approach, but we find the interpretation

at page 85, line 20. Perhaps I should start reading

at line 15:

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The learned judge regarded the most	satisfactory basis on which the agent's right
to commission can be rested was that the traditional way of expressing the purpose of
his employment, namely that he is employed
to effect a sale, might be more broadly

__ expressed by saying that he is employed to

effect a disposition of the property in a

manner acceptable to his employer.

That is one of the matters-that is the broadening

of the finding-that is employed to effect a sale

that the court made there is to be contrasted with

the rejection of such a submission by

Mr Justice Thomas with whom the former Chief Justice

agreed in BRADLEY V ADAMS at page 263 where-

BRENNAN ACJ:	We do not seem to have BRADLEY V ADAMS.
MR HARRISON:	I am sorry, I had not seen that it had not been

handed up. Perhaps I should say briefly what

happened in BRADLEY V ADAMS. Adams had contracted to

buy properties from third parties, entered into a

contract to sell to an intending purchaser. That

contract was procured by the actions of the agent.

The purchaser was unable to complete that contract

through lack of finance. The ~ransaction was recast

by which, instead of having a transfer from Adams to

the originally intended purchaser, there was a

transfer direct from the proprietors bypassing Adams,

with the effect of saving stamp duty, to a company

which was formed for the purpose as trustee of a unit

trust, with part of the consideration being taken by

Adams, by the issue of units, as opposed to cash. One

of the questions there was whether that disposition

fell within a simple engagement to effect the sale

and counsel in that case argued, as was argued here

and accepted by the Full Court, that the engagement

should be given such a wide meaning but that was, as

I said, rejected by Mr Justice Thomas at page 263 ,

about line 38:  Mr Couper (for the agent) submitted that

the relevant retainer was to find a purchaser

who would purchase "on terms that Mr Adams

would find satisfactory". The learned trial

judge did not make any finding in those terms,
although he indicated that he accepted the

evidence of the plaintiff's witnesses. The

evidence contains a number of very broad

statements attributed to Mr Adams. Some of

these plainly relate to the time after the

substitute arrangement was already in train

and on their face failed to provide evidence

of prior engagement or fresh engagement.	The
only specific indications of the original

request which led to the agent's useful work

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in introducing Mr de Longa are of a

request to find a buyer or joint venturer

at a price of $850,000.	I do not think that
retainer for which Mr Couper contended.	the evidence safely justifies the catch-all

But_ I have got on to that point because Your Honour

has_asked what finding did the judge make as to the

terms of the contract. His Honour found the words

and then interpreted them in that broad way, but in
our submission the finding of the words is sufficient

for our purposes because it is a matter of the

interpretation of the words that we are concerned with.

BRENNAN ACJ: That raises two questions: first, do I take it

that there is no doubt but that the agreement that

was made was an agreement between Chard Holdings and

Ross Mccartin Realty?

MR HARRISON:	There is no doubt that that- - -
BRENNAN ACJ:	No doubt about that?

MR HARRISON: That is so. And the trial judge rejected any

claim against the principals of Chard Holdings, the

Dorflers. He held that they were not parties to

any agreement.

BRENNAN ACJ:  Now the second question is what the terms of the

contract were and the judge made a finding as to what

words were used and a particular construction was

placed on those words.

MR HARRISON:	Yes.
BRENNAN ACJ:	Now, given that construction, if the construction

is right, does the conclusion follow?

MR HARRISON:  No, not in relation to what I have said is the

first point that we are raising because that does not solve the question, in our submission, of whether the

test is one of continuity of negotiations or whether

it is necessary, as we submitted, to look at what

occurred after the first contract had failed, that is

the devising of a scheme whereby stamp duty was saved

with the consequent result in effect that it cost the

purchaser less- - -

GAUDRON J: But is that not merely a question of fact to be

ascertained by reference to the contractual term to

effect a disposition of the property in a manner

acceptable to his employer?

MR HARRISON:	There is a question of fact involved but the court did not resolve that question of fact but asked itself
another question.  It asked itself the question whether
there was any break in the negotiations. So that if
one takes the case in BRADLEY V ADAMS - - -

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GAUDRON J: But presumably only because you propounded that or

those representing your client propounded that as a

test to be applied in the circumstances.

MR HARRISON:  I cannot say that - certainly as I understand it

the other side propounded that as the test. The

reason I am hesitating is I was in the Full Court.

I certainly did not propound that in the Full Court and I cannot say absolutely that there was no- - -

GAUDRON J:  Was it not your client who called the evidence of

the break in the negotiations?

MR HARRISON:  Yes, certainly our client did call the evidence

of the break in the negotiations.

GAUDRON J: Presumably because it wanted to rely on it.

MR HARRISON:  Yes. That must be the answer, but that does not

mean that that is the correct test. It also called

the evidence of what we submitted are the relevant

matters and that is - - -

GAUDRON J: What test did you propound at first instance?

MR HARRISON:  I am afraid I cannot answer that confidently. I

cannot say that we did not propound the test of a

substantial break in negotiations, although assuming

one propounds - on my side, propounds a test which

says: because the sale was called off it was an
entirely fresh matter when the parties got together
again, that does not mean that if one finds that, no,

the parties did continue to keep in touch with one

another, that the matters that were relied on in

BRADLEY V ADAMS, which were the same that we relied

on, that is redefining the scheme to save stamp duty

and obtaining another means of solving the problem

of finance, are to be ignored. In other words, one can say, if there was a complete calling off of the deal and then it resumed later, that may break the

chain of causation. That does not mean that because

there was no complete calling off, the chain of

causation is unbroken.

·so it would not, assuming that BRADLEY V ADAMS

is correct - - -

GAUDRON J: Except you have a finding of fact against you which

destroys some of the logic of that proposition, have

you not? There is a finding of fact that had the

transaction gone through according to the contract

as originally signed the agent would have been the

effective cause of the sale or the agent would have

effected a disposition of the property in a manner

acceptable to his employer.

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MR HARRISON: Yes, I am not sure that we have contested that.

GAUDRON J: Yes. Given that finding of fact against you, and

then a finding that there was no break in the

negotiations, that really it was just a recasting of

the same transaction which would have resulted in

commission, do you not have some insuperable problem

then-in propounding some other basis on which to

approach the matter?

MR HARRISON:  No, in our submission, because the finding that

there was no break in the negotiations does not deal
with the question of whether the recasting of the

transaction broke the chain of causation. They are

dealing with different things. So if one, for

example, could go back to BRADLEY V ADAMS, and if on

the day that the sale fell through because of the

inability of the purchaser to find finance, if it were

relevant as to whether they though of the new way of
recasting the transaction that day or before or two

months after, that would have been a matter for the

court to consider there, and in other cases relied

on such as a case by the name of RASMUSSEN mentioned

T7	there.where finance was introduced from another source.
If it were a test to look at whether there was a
break in negotiations or not, one would have expected the court to examine that. But the Full Court appears,
by treating that as the only test and as it were
ignoring the arguments about the recasting on this aspect of the matter, is creating a new and overriding
test. In our submission, that is a matter which goes
contrary to the reasoning in BRADLEY V ADAMS and
obviously, we would be submitting, is wrong. It is
a matter which, in our submission, needs to be
clarified by this Court, otherwise it will continue to
be applied and one will face the apparent conflict
between the two decisions.

BRENNAN ACJ:  Is that not something which the Full Court or the

Supreme Court of Queensland should resolve; if there

be a true conflict between·them?

MR HARRISON:  I am pausing because I think the court has recently

with the question of when it will override its own

decisions and has taken, again, a fairly restrictive

view of that.

BRENNAN ACJ: Then this might be an appropriate case for it to be

able to choose between which of its two inconsistent

prior decisions it will follow.

MR HARRISON:  In our decision it would not be desirable to require

the court to do that when the judicial process in this
decision has not come to an end. That is certainly a

problem that it would have to face, if this decision

were allowed to stand. But, in our submission, the

fact that it can do that ought not to be a reason for

this Court's declining to resolve the question when

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it is raised before this Court and when it is a

matter which affects the rights of the parties which

are currently before the Court.

BRENNAN ACJ:  How do you build this into a question of law?

MR HARRISON: · Jt is a question of law, Your Honour, because we

submit that as a matter of law it cannot be correct

that the - maybe the chance circumstance of when the

parties, for example, think of a way of completing

the transaction - that as a matter of time could be

relevant to the matter of causation.

BRENNAN ACJ:  I am sorry, I do not follow. What is the proposition

of law which you say ought to have been given effect

to by the Full Court in this case?

MR HARRISON:  What the court ought to have done is held as a

matter of law that it was irrelevant to the question -

to a finding whether there was a break in the chain
of causation that the parties did not have a break in

the negotiations between them.

GAUDRON J: But where would that then take you?

MR HARRISON: That would take us - - -

GAUDRON J: It still leaves the question on the construction of

the contract at page 85 of the appeal book,whether

the agent effected"a disposition of the property in

a manner acceptable to the employer." You have to

go much beyond that step to succeed in your appeal,

do you not, and there are no factual findings behind

you.

MR HARRISON: There are two issues in the sentence that

Your Honour read though. We are concerned with the

issue of whether the agent effected it. There is the
other issue of whether the transaction that, assuming

the agent effected it, was .one within the scope of

his engagement. And the submissions I am making now

are dealing with the question of whether the agent

effected it. That is simply the question of causation.

That does not, in our submission, stand or fall on

how one interprets the engagement.

Certainly if one finds that the agent effected it,

then one comes to the next question that is involved

in that sentence, that is whether it was in the terms

of his engagement. But that - the first question does

not depend, in our submission, on whether the court

was correct or incorrect in interpreting the words

that it found were used so broadly.

BRENNAN ACJ:	There are two questions: . one is the question of construction of the words that were used to make
the alleged contract, and the second is whether or not

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that contract has been performed, and it is the second

question which gives rise to the issue of whether the
agent effected the transaction.

MR HARRISON:  I am not sure that I would put it that way,

Your Honour.

-

BRENNAN ACJ:	But why would you not put it that way?
MR HARRISON:	Because, in our submission, it hides what is the issue. In saying "Has the contract been performed"
then one must analyse that further and say, "The
bases on which it is alleged that it has not been performed are, one, that the agent was not the
effective cause of the sale; two, in that what was
performed was different from what the agent effected."
BRENNAN ACJ:	The question is whether the construction placed

upon the contract covered the transaction which in fact

took place.

MR HARRISON:  No, in our submission, it is not, Your Honour. The

question, in our submission, is - one can have a case

where - suppose we cast aside the complications here

of the restructuring of the transaction and it was

simply a case of a new financier being introduced by,

as in the RASMUSSEN case that is mentioned in here,

another agent. The question that we seek to have
dealt with would still arise, in our submission, that

is the question whether the court was right to determine
the matter of causation by the question of whether

there was a break in negotiations or not.

BRENNAN ACJ:	One must nevertheless put it into the framework, must one not, of what are the terms of the contract
and whether or not what was done was done in
performance of those terms?  H'ow else can the problem
arise?
MR HARRISON:	The problem can only arise if one answers both of

those favourably to the agent.

BRENNAN ACJ: Quite.

MR HARRISON:  But that does not solve the question of causation.

Unless one - - -

BRENNAN ACJ:	Then to what possible issue is the question of causation relevant?
MR HARRISON:	I am sorry, it is relevant to the question of

whether the agent earns the commission.

BRENNAN ACJ:  And can the agent earn the commission save by

performance of a contract?

MR HARRISON:  One of the matters which the agent must perform is

that he must be a cause of the sale.

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BRENNAN ACJ:	That is performing the contract.
MR HARRISON:	But that is not determined by the other matters

that Your Honour has raised, that is the -

BRENNAN ACJ:  I do not understand how it cannot be, because if

it does not relate to the performance of the contract

how-else can the question of whether he effects a

sale be relevant to his entitlement to connnission?

MR HARRISON:  Because there is no issue , as we understand it

here, that it is a term of the contract that the agent

must cause the sale. The court is not being asked

to, as we understand it, rule that this contract was

one in which the agent could earn the connnission

without being the cause of the sale. So that any

uncertainties as to the terms that Your Honour is

referring to, in our submission, do not bear on the

term which both sides, as we understand, accept as

the term, that is that before the agent gets his

connnission he must have caused the sale.

BRENNAN ACJ:  Mr Harrison, could you just tell me where the

fallacy is in this proposition: that the first

proposition that the Court has to address is what is

the terms of the contract. And that is a question

of construction dependent upon the words that were

used and the circumstances in which they were used.

MR HARRISON:	Yes.
BRENNAN ACJ:	Now, the next question is whether or not, having

regard to the construction that is rightly to be

placed upon the contract, in the events that happened,

did the agent perform that contract?

MR HARRISON: Yes.

BRENNAN ACJ:  Now, the question of causation falls into the second

of those categories of relevant considerations.

MR HARRISON: Certainly.
BRENNAN ACJ:	And the first of them turns on the particular

words of the contract.

MR HARRISON:  Not in this case, because there is no dispute that

it is a term of the contract that the agent must be

a cause of the sale.

BRENNAN ACJ:  The construction of the contract is a matter which

must turn upon the words that were used and the

circumstances in which they were used.

MR HARRISON: But when Your Honour is talking about the question

of construction - could I put it this way, Your Honour:

suppose that the parties are completely ad idem as to

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the meaning of the contract; that it is precisely

defined what the agent must achieve and there is no

dispute but that that result has occurred. There
is no dispute between the parties that nevertheless
the agent must be the cause of that result. So

there is no question of construction there - no

relevant question of construction in dealing with the

point of causation because both sides accept that that

is something which the agent must do; he must cause

the contracted for result. So there is no question

of construction affecting this- - -

BRENNAN ACJ:  You have a settled construction in such a case.

You would then go on to consider whether or not there

has been a performance of the contract.

MR HARRISON:  In the case of litigation between parties, if both

parties agree on the construction, the only question

then is whether the agent was the cause and so one

is not - - -

BRENNAN ACJ:  That depends on what the terms of the contract are

that are agreed. If it is agreed that the contract

requires the agent to be the cause, then the question is: is the agent the cause? Now, in this case, as I

understand it, you would submit that the question is:

is the agent the cause?

MR HARRISON:  Yes, we would say it is agreed that the agent

must be the cause.

BRENNAN ACJ:  Then the next question is: was the agent the cause?

Is that not a question of fact?

MR HARRISON:  It should be a question of fact but the court

cannot consider the facts in globo and the court falls

into error if it takes into account irrelevant facts

and facts which one can say of their nature are

necessarily irrelevant.

BRENNAN ACJ: Yes.
MR HARRISON:	Your Honours, we do seek to raise another matter

and that is the question that arose as to the -
assuming that commission is recoverable - whether the

parties by,subsequent to the original contract,

agreeing on a particular rate of commission are

bound by that agreement.

GAUDRON J: This is a point you disavowed at first instance, is

it not?

MR HARRISON:  No, in our submission we did not disavow it; we

did not argue it on that basis.

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GAUDRON J: Is it a point where there·are any factual findings

at first instance which would enable the matter to

be determined?

MR HARRISON:  We say all the necessary findings are made. Those

findings are these, if the Court pleases: firstly,

the finding at page 58. After His Honour had

rejected the case of the defendant, that there was an

initial agreement for reduced commission, he talks

in terms of splitting commission, His Honour finds,

this is at line 32:

there was an engagement without any express

reference to fees, which would of course

result in the implication that a reasonable

fee would be paid.

Then there is the finding at page 68, and the passage

goes from l:ines 3 to 45:

It will be remembered that there was a conflict

between Mr Adams and the second defendant as

to whether there had been any talk of splitting

commission at the time when the plaintiff was

engaged. It will be remembered that I found

that there was not any such discussion at that

time. However, Mr. Adams gave evidence, which

I accept, that very much later he, being

concerned about whether the plaintiff would

be paid a commission in the event that the

transaction went through, spoke to the second

defendant on the matter.	He said that the
second defendant -

that is Derfler, one of the principals of the applicant -

said that, although he expected the transaction

to go through, he had dropped his price, and
therefore would pay only a proportion of the

commission which would otherwise be due.	The
proportion suggested was 65%.	Mr. Adams,
after a discussion with the manager of the

plaintiff, accepted this proposition in writing.

In the result, however, no commission was ever paid.

GAUDRON J: Then the next sentence.

MR HARRISON:  Yes, then His Honour goes on to say that:

During the course of the case I raised

the question whether the parties might have

come to an accord and satisfaction -

which is not the basis on which we argued the matter

in the Full Court, and His Honour goes on:

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but neither party was prepared to take

up that argument.

That is the argument of accord and satisfaction.

Each plainly wished to proceed, and did

- -proceed, on the basis that the plaintiff's

claim was for the whole of its connnission
or none.

Which - I am trying to pick my words carefully - is odd in that that seems to be completely in

contradiction to the fact that a substantial amount
of the trial was concerned with whether there was an

initial agreement to split connnission. If that is

an accurate statement of what occurred, then all

of that had nothing to- - -

GAUDRON J: You made the claim. You made the claim for the whole

lot presumably.

MR HARRISON:  The other side made a claim for the whole lot.

GAUDRON J: Yes, I am sorry.

MR HARRISON: 

We said in our case, and we led the evidence to

support it, we said no, you can only get a proportion
of that, and that was agreed right at the start of

the engagement. His Honour rejected that and said,

no, but subsequently there was an agreement as to

65 per cent of - that is the maximum scale in the

Auctioneers and Agents Regulations - would be

agreed to. His Honour says that we rejected the

argument that that was an accord and satisfaction

but he made the necessary findings to found the result

that we are contending for here, that is that there

being an agreement in fact for a quantum meruit, when
the parties subsequently reach agreement as to the

amount, then that fixes the amount and creates a

contract, notwithstanding that on one interpretation

it is a past consideration.  We cited to the Full

Court LAMPLEIGH V BRAll' HWAIT, IN RE CASEY'S PATENTS, a Privy Council decision, POW ON LAU YU LONG, and

the decision of Mr Justice Pincus, RE DOUGLAS, which
dealt with that point, which is not a matter of accord

and satisfaction. It is not a question that depends
on there being a resolution of the dispute between

the parties.

GAUDRON J: 

Was it put in these terms at first instance?

MR HARRISON: 

No, it was not put in these terms at first instance,

what we submitted in the Full Court, and the court

did not stop my arguing it but, on the other hand

it did not deal with it in its judgment.

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GAUDRON J:  It thought that if it had not been put at first

instance it was a little too late to take it then,

did it not? And if that be right, it is even a

little too late - it is much too late to take it

now, surely?

MR HARRISON: ~ut the court dealt with it at page 90, lines 26

to 38, and in our submission he did not deal with it

on that basis - - -

GAUDRON J: You must show in this Court that that approach was

not open to the Full Court, at the very least.

MR HARRISON:  I suppose what we are asking in this - - -

DAWSON J: You have also got to show something of special

importance about it, too.

MR HARRISON:  Yes, we are, with respect, saying that the Full

Court did not address the argument that was put to

it because the court - perhaps I should go to what

the court said about it at page 90, about line 25

TS the learned judge said:

that during the course of the case he raised

the question whether the parties might have

come to an accord and satisfaction, but

neither party was prepared to take up that

argument. He said that each plaintiff -

and I think that should reach "each party" because

there is only one plaintiff -

wished to proceed and did proceed on the

basis that the plaintiff's claim was for

the whole of its commission or none. In those

r circumstances I would not consider that this

ground of appeal can now succeed.

Now, His Honour Mr Justice Kelly, giving the judgment

of the Full Court, is not saying you cannot succeed

because this argument which you have put on

LAMPLEIGH V BRAITHWAIT could be affected by furhter

evidence. It is ignoring the fact that that was the

argument that was put and saying, you cannot put

the accord and satisfaction argument, which we did

not seek to put, because you- - -

GAUDRON J: His Honour is there talking about the ground of

appeal. If the case was conducted at first instance

on the basis that the claim was for all or nothing;

conducted by both parties on that basis,whether or

not that was so, and you failed to make the argument

below that you are seeking to make now, the matter

proceeds on the basis that that was not in issue and

it is to be determined on the issues that were alive

at the trial.

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MR HARRISON: In our submission, that does not necessarily

follow, and a matter that I was in and I recall to
my detriment where the case was run at first instance,

ISRAEL V FORESHORE PROPERTIES, (1980) 54 ALJR 421, which was a claim for contribution against a

guarantor for, say, $50,000. We, the defendant, won

at first instance, and that was all that the claim

was,- for contribution, 50 per cent of the amount paid.

In the Full Court, leave was given to amend, to frame the matter on the basis of being a claim for indemnity

on the grounds that we were primary liable, rather

than secondary liable, which the High Court held was

permissible on appeal. I am just giving that as an

example. One is not necessarily- - -

DAWSON J: Here, you are seeking special leave. That is a

different situation. What is the point that you say

is raised by all of this?

MR HARRISON: Really what we are submitting, Your Honour, is that

it is, we would submit with respect, unsatisfactory

that a point or a party can be cut off from litigating

a matter by the mere omission of the Full Court to deal

with it and that it is in the irterests of justice

that parties should see that the arguments that they

have put up have at least been dealt with and

disposed of.

GAUDRON J:  But it is the omission to deal with it at first

instance as well. It is the omission to take the

point. Once a matter passes into judgment then
there are special considerations as to whether a

point may be taken that was not in issue, very

special considerations.

MR HARRISON:  But when one argues the matter in the Full Court,

one is entitled, in our submission, to have the

court deal with those arguments.

BRENNAN ACJ:  Was the ground of appeal taken by you to the

Full Court?

MR HARRISON:	No, Your Honour.
BRENNAN ACJ:	It was not in your grounds of appeal?

MR HARRISON: It was not in the grounds of appeal. It was

argued without objection, I am sorry, without

objection by the Full Court. The Full Court allowed

me to argue it.

BRENNAN ACJ:  Well, Mr Harrison, it is not dealt with by the

judge at trial; it is not taken in the grounds of

appeal to the Full Court; it is argued without a

specifically formulted ground of appeal to the Full

Court; it is scarsely a point that would be given

special leave to be argued here.

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MR HARRISON:  That is a matter for Your Honours. There is

nothing further, Your Honours.

BRENNAN ACJ:  We need not trouble you, Mr Webb.

The construction placed upon the agreement

admittedly made between the appellant and the second

respondent turns on the particular coIIll!lunication

between the parties to the agreement in the

circumstances in which they occurred. That raises

no question of law which is of general public

importance. Upon the construction adopted by the

Full Court, the only remaining issue is whether the

contract was performed, whether the agent effected

the transaction in accordance with the terms of the

agreement. Again, this is a question of fact.

The supplementary argument that the applicant

seeks to raise with respect to an agreement that

only 65 per cent of the ordinary coIIll!lission should be

paid is an argument which was not considered by the

trial judge, nor by the Full Court. The argument

necessarily depends upon the facts of the case and it

would be inappropriate to grant special leave to
consider that argument on appeal.

In the absence of a special leave point, the application for special leave must be refused and

it is refused accordingly.

MR WEBB:  I would seek an order for costs, if it please the Court.

BRENNAN ACJ: Have you anything to say about that, Mr Harrison?

MR HARRISON:	No, Your Honour.
BRENNAN ACJ:	It will be refused with costs.
AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

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