NEW SOUTH WALES. Stamp Duties-Unstamped instruments-Contract of sale of land-Evidence of
contract-Admission by party to contract-Action for commission on sale- Stamp Duties Act 1898 (N.S.W.) (No. 27 of 1898), sec. 15. SYDNEY,
Sec. 15 of the Stamp Duties Act 1898 (N.S.W.) provides that no unstamped April 16, 17,
instrument shall, except in criminal proceedings, be admissible in evidence, or available or effectual for any purpose whatsoever in law or equity.
Held, that where a contract is reduced to writing in an instrument which is intended by the parties to be the binding record of the contract and that instrument is required by the Stamp Duties Act 1898 to be stamped, a person who wishes to rely on that contract cannot do so unless the instrument is stamped.
Held, therefore, in an action to recover commission for procuring a sale of the defendant's land, the instrument recording the contract of sale being insufficiently stamped, that the plaintiff was not entitled to prove the contract
by an admission of the defendant that he had made it, and consequently that a subsequent deed executed by the defendant which recited the contract of sale was not admissible in evidence to prove it.
Slatterie v. Pooley, 6 M. &W., 664 King v. Cole, 2 Ex., 628, and Birchall V. Bullough, (1896) 1 Q.B., 325, distinguished.
Decision of the Supreme Court of New South Wales: Moore v. Dent, 18 S.R. (N.S.W.), 455, reversed.
APPEAL from the Supreme Court of New South Wales.
An action was brought in the Supreme Court by Brian Ludlow Moore against John Irwin Dent in which the plaintiff claimed £1,294 14s. 6d., being the amount of commission alleged to be due on the sale of the defendant's station, Ooma, to Mutual Investments Ltd. in accordance with an account which had been rendered by the plaintiff to the defendant and in which it was stated that the station contained 26,538 acres, that the price for which it was sold was £4 2s. 6d. per acre and that the amount of commission claimed was 21 per cent. on the first £10,000, 11 per cent. on the next £10,000 and 1 per cent. on the balance. The defendant's plea was never indebted. The action was heard before Sly J. and a jury. In addition to oral evidence in support of the plaintiff's claim (the nature of which appears in the judgments hereunder) three docu- ments were tendered in evidence on behalf of the plaintiff, and after objection were admitted. The first of these documents (Exhibit J) was an indenture of surrender dated 28th March 1917 of the lands comprising Ooma Station by the defendant, by the direction of a company called Mutual Investments Ltd., to the Crown, which was executed by the defendant. This indenture recited (inter alia) that the title to the lands in question was in the defendant; that both Houses of Parliament had approved of the purchase of those…
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 Dent v Moore
Sign in free to access the full text
Details
AGLC
Dent v Moore [1919] HCA 11
Case
[1919] HCA 11
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning an action for commission on the sale of land. The plaintiff, Brian Ludlow Moore, a stock and station agent, sued the defendant, John Irwin Dent, for commission allegedly due on the sale of Dent's station, Ooma, to Mutual Investments Ltd. The Supreme Court had previously dismissed the defendant's motion for a new trial or to enter a verdict for the defendant.
The central legal issues before the High Court were whether an unstamped or insufficiently stamped instrument, which recorded a contract of sale of land, could be relied upon to prove the existence and terms of that contract, even if the party seeking to rely on it did not tender the instrument itself into evidence. Specifically, the court had to determine if admissions made by the defendant, or recitals in subsequent deeds, could serve as admissible evidence to establish the contract, notwithstanding the provisions of section 15 of the *Stamp Duties Act 1898* (N.S.W.).
The High Court reasoned that section 15 of the *Stamp Duties Act 1898* (N.S.W.) renders an unstamped instrument inadmissible and unavailable for any purpose in law or equity, except in criminal proceedings. The Court held that where a contract is reduced to writing and intended by the parties to be the binding record of their agreement, and that instrument is subject to stamp duty, a party seeking to rely on that contract cannot do so unless the instrument is properly stamped. The Court found that the plaintiff's claim for commission was fundamentally dependent on proving the contract of sale. While admissions and recitals might ordinarily be admissible evidence of a fact, in this instance, they served to prove the existence and terms of a written contract that was required to be stamped but was not. To allow such admissions or recitals would effectively permit the use of an unstamped instrument for a purpose prohibited by the Act, thereby undermining the revenue protection purpose of the stamp duties legislation. The Court distinguished *Slatterie v. Pooley* and *King v. Cole* on the basis that they did not involve the specific prohibition found in section 15 of the New South Wales Act.
Consequently, the High Court allowed the appeal, reversed the decision of the Supreme Court of New South Wales, and ordered that a verdict be entered for the defendant. The plaintiff was therefore not entitled to recover commission as the underlying contract of sale could not be proven due to the insufficient stamping of the instrument evidencing it.