Major v Bretherton - [1928] HCA 11

BRETHERTON AND ANOTHER

RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF Tort - Action for deceit - Fraudulent misrepresentations - Lease - Guarantee-

Collateral agreement-Warranty-Damages. High Court Practice-Concurrent findings-Trial Judge-State appellate Court

Appeal to High Court. May 10, 11, 14, 15; June

In an action in the Supreme Court for damages for fraudulent misrepre- sentations inducing one of the plaintiffs to enter into an agreement in writing to lease a theatre and the other plaintiff to guarantee in writing the payment Isaacs, Higgins,

of the rent thereof, and also for damages for breach of a verbal warranty collateral to the lease, the trial Judge found for the defendant on the issue as to the fraudulent misrepresentations, and as to the claim for breach of warranty he held that the defendant did not intend and was not understood to intend to give any further promise than was contained in the lease. On appeal the Full Court agreed with the trial Judge as to the misrepresentations, but held that the evidence established the collateral verbal warranty and that it was intended to be legally binding and entered judgment in favour of the plaintiffs for damages for breach of the warranty. On appeal to the High Court,

Held, that there was evidence justifying the decision of the trial Judge, and that the appeal should be allowed.

Per Isaacs J.: In an appeal to the High Court on the facts where there are concurrent findings by the trial Judge and the State appellate Court, the High Court should not interfere with those findings unless it is clearly convinced that the findings are erroneous.

Judgment of the Full Court of the Supreme Court of Victoria in part reversed and judgment of Dixon A.J. affirmed.

41 CLR 63

APPEAL from the Supreme Court of Victoria.

In an action brought by Albert Wilbur Bretherton and Dora Louise Bretherton in the Supreme Court against Edward Harold Major, the plaintiffs sought to recover damage for false and fraudulent misrepresentations which they alleged had been made by the defendant, whereby the plaintiff Mrs. Bretherton had been induced to enter into a lease of the Cremorne Theatre, Brisbane, and the plaintiff Dr. Bretherton had been induced to guarantee in writing the payment by her of the rent of the theatre, and alternatively for damages for breach of a verbal warranty collateral to the lease- the plaintiffs alleging in their statement of claim that the defendant had verbally promised and warranted to the plaintiffs, in consideration of their promising to enter into the lease and the guarantee respectively, that he had control of the Bohemia Theatre, Brisbane, and that such theatre would not during the term covered by the lease be used as a theatre or in opposition to the Cremorne Theatre.

The action was heard by Dixon A.J., who gave judgment for the defendant.

From this decision the plaintiffs appealed to the Full Court of the Supreme Court, which by a majority (Irvine C.J. and Cussen J.,…

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 Major v Bretherton

Details

AGLC: Major v Bretherton [1928] HCA 11
Case: [1928] HCA 11
Decision Date: 7 June 1928

CaseChat Overview and Summary

The respondents, Albert Wilbur and Dora Louise Bretherton, sued the appellant, Edward Harold Major, in the Supreme Court of Victoria for damages. Their claims were based on allegations of fraudulent misrepresentations that induced Mrs. Bretherton to lease a theatre and Dr. Bretherton to guarantee the rent. Alternatively, they sought damages for breach of a collateral verbal warranty that the appellant would not use a neighbouring theatre in opposition to the leased premises. The trial judge, Dixon A.J., found for the defendant on the misrepresentation claim and held that no legally binding collateral warranty was intended. The Full Court of the Supreme Court agreed on the misrepresentation issue but, by majority, found that a collateral verbal warranty had been established and entered judgment for the plaintiffs. Both parties appealed to the High Court.

The High Court was required to determine whether the Full Court erred in finding a legally binding collateral verbal warranty, and whether the trial judge's findings on the alleged fraudulent misrepresentations should be upheld. A significant issue before the High Court was the approach to be taken when there were concurrent findings of fact by the trial judge and a state appellate court, particularly in relation to the claim for deceit.

The High Court, by majority, allowed the appeal. The Court held that the trial judge, Dixon A.J., had made findings of fact that were supported by evidence, particularly regarding the absence of an intention to create a legally binding collateral warranty beyond the written lease. The judges emphasised the importance of the trial judge's advantage in observing the witnesses' demeanour and the inherent difficulty in overturning written contracts based on oral evidence. Furthermore, the Court applied the principle that it should not interfere with concurrent findings of fact by the lower courts unless clearly convinced that those findings were erroneous, a principle particularly relevant to the deceit claim.

The judgment of the Full Court of the Supreme Court was reversed, and the judgment of Dixon A.J. was restored. The cross-appeal by the respondents was dismissed. The Court also refused an application to amend the statement of claim to raise a new issue regarding an implied promise by the lessor to retain control of the Bohemia Theatre, leaving the respondents to pursue such claims in separate proceedings if advised.

Orders