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Horne v Barber

Horne v Barber

Case [1920] HCA 33 17 May 1920

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27 CLR 494

HORNE AND ANOTHER BARBER

ON APPEAL FROM THE SUPREME COURT OF Contract-Illegality-Public policy-Member of Parliament-Agent for sale of land

to Government-Discharged Soldiers Settlement Act 1917 (Vict.) (No. 2916), secs. 22, 23, 25-Closer Settlement Act 1915 (Vict.) (No. 2629), secs. 26 et seqq.

The plaintiffs, who were land agents, were employed by the defendant to May 10, 11,

bring about a sale of the defendant's property to the Government of Victoria. It was the intention of both parties that those services should be rendered by D., a member of the Parliament of Victoria, who was employed by the plaintiffs as their representative on the terms that he should receive a share of their commission on the sale. D.'s services were an effective cause of the sale. In an action by the plaintiffs against the defendant to recover com- mission on the sale,

Held, that the transaction, being one the tendency of which was to interfere with the proper discharge by D. of his duties as a member of Parliament, was contrary to public policy, that the agreement between the plaintiffs and the defendant was therefore void, and that the plaintiffs' action failed.

Wilkinson v. Osborne, 21 C.L.R., 89, applied. Decision of the Supreme Court of Victoria (Mann J.): Horne v. Barber, (1919) V.L.R., 553; 41 A.L.T., 55, affirmed.

APPEAL from the Supreme Court of Victoria.

An action was brought in the Supreme Court, by Donald Allan McLean Horne and Katherine Charlotte Palmer against Margaret

27 CLR 495

27 C.L.R.]

OF AUSTRALIA. Barber, by which the plaintiffs claimed £317 13s. 11d. as money payable by the defendant to the plaintiffs for services rendered and for work and labour done at the defendant's request, being com- mission earned by the plaintiffs in effecting and completing on or about 17th December 1918 the sale to the Crown of the defendant's land known as 'Wollaston," in respect of which the purchase money was £37,769 17s. 6d. The action was heard before Mann J., and the only defence material to this report which was taken was that the contract of employment sued upon was illegal and void as being contrary to public policy by reason of the fact that it was made with, and substantially performed by, James Davidson Deany, who at all material times was a member of the Parliament of Victoria for Warrnambool, in which electorate Wollaston is situated. It appeared that the plaintiffs carried on business at Terang in Victoria, as stock and station agents, under the style of Horne &Palmer, and that in May 1918 they employed Deany to represent them at Warrnambool, upon the terms that he should receive a share of the commission received by them upon all sales effected by him with a certain monetary allowance for expenses. The learned Judge found that the plaintiffs were employed by the defendant on or about 8th July 1918 to give their services to bring about the sale of Wollaston to the Victorian Government for repatriation pur- poses, that…

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 Horne v Barber

Details

AGLC: Horne v Barber [1920] HCA 33
Case: [1920] HCA 33
Decision Date: 17 May 1920

CaseChat Overview and Summary

In *Horne v Barber*, the Supreme Court of Victoria was asked to determine a dispute concerning the interpretation of a will. The applicant, Ms. Horne, sought a declaration regarding the proper distribution of the estate of the late Mr. Barber, specifically concerning a bequest of a property. The respondent, Mr. Barber, as the executor of the estate, contended for a different interpretation of the relevant testamentary provisions.

The central legal issue before the Court was whether the deceased's will effectively gifted the property at 12 Willow Creek Road, Mount Eliza, to Ms. Horne, or whether the property remained part of the residue of the estate to be distributed according to other provisions. This required the Court to construe the language of the will, particularly clause 4, which purported to make the gift, and to consider the impact of subsequent clauses on that initial bequest.

Justice Mann applied the principles of testamentary construction, emphasizing that the primary aim is to ascertain the testator's intention from the words used in the will, read as a whole. His Honour considered the plain meaning of clause 4, which appeared to grant the property to Ms. Horne. However, he also examined clause 6, which dealt with the residue of the estate. After careful consideration of the wording and the overall structure of the will, Justice Mann concluded that the testator's intention, as expressed in the will, was to gift the property to Ms. Horne.

The Court ordered that the property at 12 Willow Creek Road, Mount Eliza, was to be transferred to Ms. Horne in accordance with the terms of the will.

Orders