PRESTON V. EMMETT

SS

IN THE HIGH COURT OF AUSTRALIA

ORAA. [REASONS FOR JUDGMENT

HL E, Daw, Gor. Print, Melb. 0.12280/45

PRESTON ve EMMETT. SYDNEY, THURSDAY, 21ST NOVEMBER, 1946.

JUDGMENT: LATHAM, C.d- THE CHIEF JUSTICE: It was suggested by Mr.Shand that this

application might be treated, if the Court were disposed to grant leave to appeal, as the hearing of the appeal. Mr. Collins has not expressed any view upon that. I might say, i irness to, hi that the Court would be disposed to

DBS PAPERS Eee aE EP eee OTE as the argument' on the appeal, or would you desire to have further time for" argument?

MR. COLLINS: With respect to the Court, if the Court was of the opinion that in view of the form of the contract I could not succeed, I would not like to put my client to the cost of @ further appeal to this Court, so therefore I will agree to this matter being treated as the hearing of the appeal.

THE CHIEF JUSTICE: | This is an application for leave to appeal

from an Order for a new trial in an action in which a hotel broker sued for agent's commission. Various points have been taken. The agent was entitled to commission upon effecting a Sale of a hotel and furniture. He grounds his case upon a document which was signed by at least @ proposing purchaser, W.W.Leppin. That document relates to both the hotel which

was held under lease, and to furniture and fittings. That which is sold is; as far as the furniture is concérned, furniture as per schedule attached to the contract.

There is a condition in the contract, presumably inserted in view of the provisions of the Stamps Act, making an appropriation of £1600 of the urn! ture ti ftings ete. in the schedule attached hereto" The contract which is relied upon as the basis of the Plaintiff's case is therefore a contract for selling not only the licence and goodwill of the hotel, but furniture as per schedule attached; and no schedule was attached. The alleged contract was therefore incomplete in an essential particular and did not amount to a contract in respect to any daentifiable furniture. It therefore cannot be said that the Plaintiff had effected a sale of hotel and furniture.