QUEENSLAND. Written contract- - Variation of, by parol agreement-Pleadings-Amendment of,
after close of evidence.
When a contract has been entered into by parol and afterwards reduced BRISBANE,
into writing, the parties to it are bound by the writing unless it is shown by May 10, 11.
evidence that the written document was not intended to embody the whole
Semble, it is not a proper exercise of his discretionary power for the presiding Judge, after the close of the evidence, to allow an amendment of the pleadings to raise a point founded on some oral statement by a witness, which may have been perfectly complete so far as it was relevant to the issues which were being tried, but which, if it had been given with reference to entirely different issues, might have been supplemented or qualified by
APPEAL from the decision of the Full Court of Queensland setting aside the judgment of Real J., and entering a verdict for the plaintiff for £2,500, being the amount of damages found by the Judge as having been suffered by the plaintiff.
The plaintiff, a timber merchant, sued the defendant upon a written contract for the supply of a large quantity of log timber of specified dimensions, He alleged that the timber had never been supplied, and claimed damages for breach of contract. The defendant in the first place denied the contract. He next pleaded that if he executed the agreement (which he did not admit) the plaintiff knew, and it was a term of the agreement, that the timber was to be obtained from certain Crown lands, and was conditional on the defendant's obtaining a licence to take timber from those lands: and further said he could not, within the period mentioned, obtain the quantity of timber of the average girth which the plaintiff said he had to supply because there was not sufficient timber of that class on the lands. This defence was shown to be untenable. The defendant also pleaded that if he executed the agreement he did SO in the faith and belief (as the plaintiff well knew) that he was not bound by the agreement to deliver logs of an average girth of eight feet but that logs of five feet girth would be accepted, and that by the agreement there was no fixed time of delivery. It was on these pleadings that the defendant came into Court, and he failed upon these defences. The plaintiff proved a written agreement by which he undertook to purchase and the defendant to sell 500,000 superficial feet of dark red cedar in the log at 25s. per 100 superficial feet loaded on trucks at Allora railway station, provided the logs were supplied in lengths of from 10 to 15 feet (averaging 12 ft. 6 in.) and an average girth of not less than 10 ft. 6 in., and at the rate of not less than…
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.
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AGLC
Gordon v Macgregor [1909] HCA 26
Case
[1909] HCA 26
Decision Date
CaseChat Overview and Summary
The case of *Gordon v Macgregor* involved an appeal to the High Court of Australia from a decision of the Full Court of Queensland. The dispute concerned a written contract for the supply of log timber. The plaintiff, a timber merchant, sued the defendant for breach of contract, alleging the timber had not been supplied. The defendant raised several defences, including denying the contract, claiming it was conditional on obtaining a licence, and asserting that the plaintiff had agreed to accept logs of a smaller girth and that no fixed delivery time was agreed upon.
The legal issues before the court included whether the written contract accurately represented the entire agreement between the parties, particularly concerning the commencement of deliveries and the minimum girth of the logs. A further issue was whether the trial judge had erred in allowing the defendant to amend his pleadings after the close of evidence to raise the Statute of Frauds as a defence, based on an alleged oral agreement that varied the written terms.
The High Court, in allowing the appeal, affirmed the decision of the Full Court of Queensland. The Court applied the principle that where parties reduce their agreement into writing, they are bound by the written document unless it can be shown that the writing was not intended to embody the whole contract. The Court found that the defendant had failed to establish that the written contract did not represent the entirety of the agreement. Specifically, the alleged oral agreement regarding a three-month delay before delivery commenced was considered at best ambiguous and, in light of the defendant's own evidence denying any fixed time, insufficient to vary the written terms. Similarly, the claim of a verbal agreement on minimum log girth was found to be unsupported by evidence. The Court also expressed reservations about the trial judge's exercise of discretion in allowing the amendment of pleadings so late in the proceedings, noting the potential for unfairness and the lack of sufficient evidence to support the new defence.
The High Court ordered that the appeal be dismissed, upholding the judgment of the Full Court of Queensland which had set aside the trial judge's verdict for the defendant and entered judgment for the plaintiff for £2,500 in damages.