Dent v Moore

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.