HENRY H. YORK AND COMPANY PROPRIETARY LIMITED V. BANYARD AND OTHERS 43//1942

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IN THE HIGH COURT OF AUSTRALIA.

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REASONS FOR JUDGMENT.

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) NEW SOUTH WALES REGISTRY ) No. 43 of 1942 ON APPEAL from the Supreme Court of New South Wales in Equity in Suit No. 876 of 1941.

BETWEEN HENRY H. YORK AND COMPANY PROPRIETARY LIMITED

Appellant and

FRANCIS RALPH BANYARD ROBERT WEIR and BRITISH ENGINEERING PROPRIETARY LIMITED

Respondents. 16th August 1943. JUDGMENT .

HIS HONOUR THE CHIEF JUSTICE:

This is an appeal from the Supreme Court of New South Wales in Equity in a case in which the Chief Judge in Equity, Mr. Justice Nicholas, dismissed a suit seeking rescission of a contract for the sale of certain shares upon the ground of fraud. I preface what I am about to say by the statement that fraud, when alleged, must be strictly proved and, speaking generally, should be proved as charged.

In this case the agreement was for the sale of 1428 shares (49 per cent of the issuef shares) which stood in the name of a man named Weir in a company called British Engineering Pty. Ltd. In fact the shares which stood in Weir's name were only nominally his shares, he holding them on account of the plaintiff Company. That that was the fact is not now challenged though at one time, in the course of negotiations between the parties, or in the relationship between the parties, there was some controversy about it.

The plaintiff Company and the defendant Company, of which F.R. Banyard was the Governing Director, were engaged in somewhat similar lines of business and the plaintiff Company acted as agent for the defendant Company in Melbourne. When it becane ascertained - certainly in 1939, possibly earlier - by Banyard that Weir did not him- self own these shares, Banyard expressed his dissatisfaction with a condition of affairs which had allowed Weir to have a large interest in the Company ostensibly on his own account but really on behalf of the plaintiff Company. Accordingly the parties met in order to see