See v Cohen

The plaintiff, Samuel Grafton Norris See, appealed to the High Court of Australia against a decision of Starke J. in favour of the defendants, Philip Cohen and Hugh Augustus Wolrige. The dispute concerned a contract for the sale of negotiable wheat certificates for the 1915-1916 season. The plaintiff sought to recover damages for the defendants' alleged breach of contract in refusing to accept delivery of the certificates or pay the agreed price.

The central legal issue before the High Court was whether the contract constituted a valid sale of wheat certificates or was a contract by way of gaming or wagering, rendering it unenforceable under relevant legislation in New South Wales and Victoria. A secondary issue, considered by Starke J. but not ultimately determinative for the majority of the High Court, was whether the plaintiff had fulfilled a condition precedent regarding the timing of delivery.

The High Court, by majority, held that the contract was one of gaming or wagering and therefore void. The Court reasoned that the contract's terms, particularly the provision for adjusting differences between the agreed price and declared dividends, coupled with the seller's option to deliver scrip or make a cash adjustment, indicated that the parties' intention was not a genuine sale and purchase of the certificates. Instead, the substance of the agreement was to settle differences based on the future, uncertain value of dividends, with neither party having a substantial interest beyond the potential gain or loss from this difference. Consequently, the appeal was dismissed, and the plaintiff was ordered to pay the costs of the action and the appeal.