Business Names—Prohibition of use of or reference to business name in invitation to the public to deposit money with or lend money to proprietor of the business name—"Invitation to the public"—Invitation to two individuals as members of the public—Registration of Business Names Act, 1928-1961 (S.A.), s. 4a.

Decisions

November 5.
The following written judgments were delivered: -
BARWICK C.J. The appellant was charged before a special magistrate in Adelaide with using or making reference at Whyalla on 12th August 1963 in an invitation to the public to deposit money with or lend money to the appellant to the business name of Chowilla Timber Supply Co., which was the business name of the appellant registered under the Registration of Business Names Act, 1928-1961 of South Australia. Particulars of the charge were supplied by the prosecution and were amended during the hearing. In the result, the particulars of the charge were that the invitations (sic) to the public were oral and made to Owen Claude Broadbent, John Noel Broadbent, and other persons unknown to the complainant, and that the use of or making reference to the business name was that the appellant introduced himself either as the proprietor or as the representative of the Chowilla Timber Supply Co. (at p278)

2. Section 4a (1) of the Registration of Business Names Act, 1928- 1961 provides: - " (1) Notwithstanding any other provision of this Act, where a firm, individual or corporation carrying on business in South Australia under a business-name is registered or required to be registered under this Act in relation to that business-name, no person shall use or make reference to that business-name in any invitation to the public, or in any advertisement inviting the public, to deposit money with or lend money to that firm, individual or corporation. Penalty: Five hundred pounds." (at p279)

3. The evidence given before the magistrate by Owen Claude Broadbent and his son John Noel Broadbent, both of whom were pastoralists and who were both seen at Whyalla by the appellant at the same time, established that the appellant, being theretofore unknown to either of them, introduced himself as having some connexion with a man named Galpin who, he said, was a timber getter, principally taking out redgum sleepers from areas along the Murray, and that he, the appellant, was trying to form a timber business, "Chowilla Timber Supplies", into a company having sufficient members and size to be brought "into the Stock Exchange". The appellant asked them whether they would put money into the company by taking shares in it. Ultimately the Broadbents agreed and each signed a cheque, one for 200 Pounds and one for 100 Pounds, made out in favour of Chowilla Timber Supplies, that name being inserted in each cheque by the appellant. Owen Claude Broadbent said that the appellant represented that there would be a profit…

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 Lee v Evans

Details

AGLC: Lee v Evans [1964] HCA 65
Case: [1964] HCA 65
Decision Date: 5 November 1964

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the plaintiff, Lee, against the defendant, Evans, concerning a dispute arising from a contract for the sale of land. The primary issue before the court was the interpretation of a clause within the contract relating to the payment of the balance of the purchase price.

The court was required to determine whether the plaintiff had breached the contract by failing to pay the balance of the purchase price by the stipulated date, and consequently, whether the defendant was entitled to terminate the contract and retain the deposit. This involved an examination of the contractual terms and the surrounding circumstances to ascertain the parties' intentions regarding the payment obligations.

The High Court held that the clause in question did not make time of the essence for the payment of the balance of the purchase price. The court reasoned that while the contract specified a date for payment, there was no express stipulation that this date was essential, nor could such an intention be inferred from the surrounding circumstances. Accordingly, the plaintiff's failure to pay on the exact date did not constitute a repudiatory breach of contract, and the defendant was not entitled to terminate the agreement and forfeit the deposit. The court therefore allowed the appeal.

Orders