warranty-General verdict for plaintiff-Appeal-Verdict entered for defendant on warranty count-General verdict, therefore, not sustainable--New trial on other count--Costs-Supreme Court Procedure Act 1900 (N.S.W.) (No. 49 of 1900), sec. 7.

In an action brought in the Supreme Court of New South Wales for damages the plaintiff declared in two counts, (1) for fraudulent misrepresenta- tion, and (2) for breach of warranty, both of which were based on representa- tions and statements, alleged to have been made on 23rd May 1930 by the defendant to the plaintiff, that the takings of the defendant's hotel were £127 10s. per week, of which amount not more than £4 or £5 was taken in the house, the balance being taken in the bar. Although in the meantime he had been informed by his agent, a broker, that particulars obtained from the Licensing Court and the brewery company concerned indicated that the bar takings were only £98 per week, the plaintiff, on 19th June, signed a contract to purchase the hotel from the defendant. The written contract did not contain the warranty sued upon. The plaintiff claimed that, although he relied to some extent on the broker, he relied principally on the statement which he alleged had been made by the defendant. The trial Judge took general verdict from the jury upon both counts for an entire sum of damages.

Held that there was no evidence of a warranty, and as the evidence did not support each count the general verdict could not stand: judgment should be entered for the defendant on the count for breach of warranty, and, having regard to the evidence, a new trial should be ordered on the count for misrepresentation.

49 CLR 190

The exercise, in the circumstances of the case, of the Court's discretion as Decision of the Supreme Court of New South Wales (Full Court) reversed.

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court of New South Wales by Sydney Shaw Buckley against Frederick Cutts for £3,000 damages, the plaintiff declared in two counts, (1) for fraudulent representation and (2) for breach of warranty, both of which were based upon representations and statements alleged to have been made by the defendant to the plaintiff on 23rd May 1930 in relation to the sale of the defendant's hotel at Richmond, New South Wales.

On 23rd May the plaintiff went to the defendant's hotel to make inquiries with a view to purchase. In conversation the defendant, in answer to a question, stated that the takings, which were not kept separately for the bar, amounted in all to an average of £127 10s. per week. When pressed for the figures relative to the house, as distinct from the bar, he is alleged to have said they were £4 or £5 per week. After some further discussion the plaintiff signed what was described as a…

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 Cutts v Buckley

Details

AGLC: Cutts v Buckley [1933] HCA 21
Case: [1933] HCA 21
Decision Date: 1 May 1933

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The plaintiff, Mr. Buckley, had sued the defendant, Mr. Cutts, for damages arising from the sale of a hotel. Buckley's claim was based on two counts: fraudulent misrepresentation and breach of warranty, both relating to statements made by Cutts about the hotel's weekly takings. A jury returned a general verdict for Buckley, awarding him a sum of £525.

The legal issues before the High Court were whether there was sufficient evidence to support each of the plaintiff's claims, and if not, how the general verdict should be treated. Specifically, the court had to determine if the statements made by the defendant constituted a fraudulent misrepresentation that induced the contract, and if they also amounted to a collateral warranty. The court also considered the implications of a general verdict when one of the counts was not supported by evidence.

The High Court, by majority, found that there was sufficient evidence to leave the count of fraudulent misrepresentation to the jury, who were entitled to find that the plaintiff had relied on the defendant's statements to some extent. However, the court unanimously held that there was no evidence to support the claim for breach of warranty. The reasoning was that the alleged warranty was not supported by evidence of a collateral contract, and the statements made by the defendant were considered to be representations inducing the contract rather than promissory terms intended to form part of the bargain.

Consequently, the High Court allowed the appeal. It ordered that a verdict be entered for the defendant on the breach of warranty count, and that a new trial be held on the fraudulent misrepresentation count. The parties were ordered to abide their own costs of the first trial and the appeal to the Supreme Court, with the appellant (defendant) to have the costs of the appeal to the High Court.

Orders