Court, there is nothing to prevent him from commencing a fresh action in this Court and discontinuing the action in the Supreme Court.
For these reasons I hold that this application fails and should be dismissed.
Application dismissed. Solicitor for the applicant, W. Lieberman. Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth. Pry Lid(1984)
[HIGH COURT OF AUSTRALIA.]
LUSTRE HOSIERY LIMITED YORK
ON APPEAL FROM THE SUPREME COURT OF
NEW SOUTH WALES. Evidence-Admission-Admissibility-Probative value.
Words or conduct amount to an admission receivable in evidence against a SYDNEY,
party if they disclose an intention to affirm or acknowledge the existence of &Oct. 3, 4.
fact whatever be the party's source of information or belief. Although the mean- ing of his words or conduct may depend upon the state of his knowledge, once MELBOURNE,
that meaning appears and an intention is disclosed to assert or acknowledge Nov. 22.
the state of facts, its admissibility in evidence as an admission is independent Rich, Starke,
of the party's actual knowledge of the true facts. When admitted in evidence, however, its probative force must be determined by reference to the circum- stances in which it is made and may depend altogether upon the party's source of knowledge.
Decision of the Supreme Court of New South Wales (Full Court) affirmed, subject to a variation.
An action brought by Lustre Hosiery Ltd. in the Supreme Court of New South Wales, to recover the sum of £8,500, was upon an agreement by which the defendant, Henry Herbert York, in consideration of the plaintiff company exonerating a del credere agent, Henry H. York &Co. Ltd., from certain obligations, agreed to pay the plaintiff the amount due to it in respect of the sale of its goods which would otherwise have been due by the agent, after deducting certain commissions. The plaintiff sought to estab- lish its claim by what it submitted were admissions made by the defendant. It did not have any other evidence. The defendant asserted that the del credere risk, when he took it over, was stated by the plaintiff company or its officers to be £3,500, and that there was an offset of a corresponding credit for commissions against this sum. Early in 1932 the plaintiff company resolved that a statement be prepared and checked by its auditors, covering all amounts chargeable to the defendant under the selling agreement, that the amounts SO ascertained be transferred to the debit of the defendant, and that commissions due be credited against his account. The with the sales ledgers, and they certified, to the best of their auditors reported that they had compared certain attached lists knowledge, that the total of the same, namely, £10,313 19s. Id., represented the amount owing by the agent in terms of the agreement, but excluding a certain specified account. The auditors had no personal knowledge of the transactions, and apparently checked a list or…
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
Lustre Hosiery Ltd v York [1935] HCA 71
Case
[1935] HCA 71
Decision Date
CaseChat Overview and Summary
Lustre Hosiery Ltd. (the plaintiff) appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The plaintiff had sued Henry Herbert York (the defendant) to recover a sum of money under an agreement where the defendant agreed to pay the plaintiff amounts due in respect of the sale of its goods, which would otherwise have been paid by a del credere agent. The plaintiff's case relied solely on alleged admissions made by the defendant. The defendant contended that he had been informed the del credere risk was approximately £3,500 and that this would be offset by commissions.
The legal issue before the High Court was whether the statements and conduct attributed to the defendant amounted to admissions of liability sufficient to establish the plaintiff's claim, or whether the Supreme Court was correct in ordering a new trial on the basis that there was insufficient evidence of such admissions. The High Court was required to determine the admissibility and probative value of statements made by a party concerning facts of which they had no direct knowledge, but which were based on information provided by others.
The High Court held that while admissions made by a party are admissible even if based on secondary information or belief, their probative force depends on the circumstances and the party's source of knowledge. The court found that the defendant's statements, including those made at board meetings and in correspondence, did not demonstrate a belief or judgment that the amount claimed by the plaintiff was due. Instead, his statements indicated a dispute regarding the figures and a reliance on earlier representations made to him. The court concluded that the defendant's conduct did not amount to an admission of the correctness of the plaintiff's audited accounts, and therefore, there was insufficient evidence to support the jury's verdict.
Consequently, the High Court discharged the order for a new trial and entered a judgment of nonsuit in favour of the defendant, upholding the Supreme Court's finding that the plaintiff had failed to prove its case through admissible admissions.