Dalgety & Co Ltd v Gray - [1919] UKPCHCA 4

[PRIVY COUNCIL.]

DALGETY &COMPANY LIMITED

APPELLANTS; DEFENDANTS, GRAY

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE HIGH COURT. ContractAgency-Agreement to procure loan on mortgage-Validity-Contract

concerning interest in land-Evidence-BreachAgent lending his own money -Conflict of interests-Exoneration-Estoppel-Appeal to High Court-High Court making new case for party-Instruments Act 1890 (Vict.) (No. 1103), sec. 208 (Statute of Frauds (29 Car. II. c. 3), sec. 4).

In an action for breach of contract which was tried by a jury, the plaintiff had alleged in his pleadings an oral contract whereby the defendant Company "agreed with the plaintiff

to raise for the plaintiff, and promised that it would raise for the plaintiff the sum of £84,000 upon the security of " the plaintiff's station, " of which the sum of £72,000 or thereabouts was to be secured upon first mortgage of the said station at 4 per centum per annum and the balance £12,000 or thereabouts on second mortgage of the said station at 5 per centum per annum."

The trial Judge having withdrawn the case from the jury, and the Full Court of the Supreme Court of Victoria having upheld his decision,

Held, that the evidence established the contract as alleged, and that it was an agreement to get a mortgage, involving a promise on the part of the Com- pany to produce a mortgagee and a correlative obligation on the plaintiff to execute a mortgage on the terms specified, and was therefore an agreement to create an interest in land which by sec. 4 of the Statute of Frauds (Instru- ments Act 1890 (Vict.), sec. 208) was required to be in writing, and that the trial Judge properly withdrew the case from the jury. Present-Viscount Haldane, Viscount Cave, Lord Dunedin, Lord Shaw and

26 CLR 250

Held, also, that such a contract did not raise a conflicting interest in the person of the agent, and therefore, in the absence of any special stipulation to the contrary, there was no reason why the defendant Company should not itself lend the £12,000 on second mortgage.

Held, further, that on appeal to the High Court that Court was not entitled to make for the plaintiff a case which he had not made for himself at the trial.

Decisions of the High Court: Gray v. Dalgety &Co. Ltd., 19 C.L.R., 356; 21 C.L.R., 509, reversed.

APPEAL from the High Court.

This was an appeal to the Privy Council by Dalgety &Co. Ltd. from the decision of the High Court: Gray v. Dalgety &Co. Ltd. 1.

The judgment of their Lordships, which was read by Lord

DUNEDIN, was as follows :-

The plaintiff is a farmer, and the defendants are a company who do financing and loan business.

This is an action for damages for breach of contract. The ground of action as stated in the statement of claim is as follows 'The defendant for reward to it and in consideration of the plaintiff entrusting it exclusively with the raising of money for the purchase of Kentucky…

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 Dalgety & Co Ltd v Gray

Details

AGLC: Dalgety & Co Ltd v Gray [1919] UKPCHCA 4
Case: [1919] UKPCHCA 4
Decision Date: 13 May 1919

CaseChat Overview and Summary

Dalgety & Co. Ltd. appealed to the Privy Council from the decision of the High Court of Australia in a case involving a breach of contract claim. The plaintiff, Gray, alleged that Dalgety & Co. Ltd., a financing and loan company, had breached an oral agreement to secure a loan of £84,000 on the security of Gray's Kentucky Station property, with £72,000 on a first mortgage at 4% per annum and £12,000 on a second mortgage at 5% per annum. Dalgety & Co. Ltd. contended that the agreement was merely to endeavour to find a lender, not to secure the loan themselves, and that any contract was unenforceable under the Statute of Frauds as it related to an interest in land.

The central legal issues were whether the contract was enforceable under the Statute of Frauds, whether the contract involved a conflict of interest on the part of Dalgety & Co. Ltd., and whether the High Court was entitled to create a new case for the plaintiff on appeal. The Privy Council held that the trial judge was correct in withdrawing the case from the jury because the contract as alleged by Gray involved creating an interest in land, which needed to be in writing to be enforceable under the Statute of Frauds. Furthermore, the Council found no conflict of interest on the part of Dalgety & Co. Ltd. in lending the £12,000 themselves, absent a special stipulation to the contrary. Lastly, the Privy Council ruled that the High Court was not entitled to make a new case for the plaintiff on appeal that the plaintiff had not presented at trial.

The Privy Council allowed the appeal, restoring the judgment of the trial judge, and ordered that Dalgety & Co. Ltd. be awarded costs in the courts below and before the Board.

Orders