Brundza v Robbie & Co [1952] HCA 68

High Court of Australia Dixon C.J. McTiernan and Fullagar JJ. Brundza v Robbie & Co [1952] HCA 68

ORDER Appeal allowed with costs. Judgment of the Supreme Court discharged. In lieu thereof enter judgment for the plaintiff for £540 with costs including the costs of pleadings interrogatories and discovery.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 12 Dixon C.J., McTiernan and Fullagar JJ.

This is an appeal from a judgment of the Supreme Court of Victoria (Sholl J.) in an action in which the appellant Brundza was plaintiff, and Robert Stanley Robinson, who at the relevant time was carrying on business under the registered business name of Robbie & Co., was defendant. Sholl J. gave judgment for the defendant.

The business carried on by Robinson was that of a real estate agent, and he was registered under the Real Estate Agents Acts of Victoria. The action, which was framed as an action for money had and received, arose out of the fraudulent conduct of a man named Liubinskas, who at the time of the trial was serving a sentence of imprisonment in Sydney. The plaintiff paid a total sum of £900 in two amounts, one of £360 and another of £540, to Liubinskas, ostensibly in connection with the purchase of certain real property. There is no doubt that these sums were fraudulently obtained by Liubinskas from the plaintiff. The relation between Robinson and Liubinskas was and is in controversy, and the question whether Robinson is liable to make good those sums to the plaintiff is the question in the case, but Robinson was in no way party or privy to the fraud, and none of the money received by Liubinskas from the plaintiff was ever paid to Robinson. The plaintiff put his case on three bases, the first two resting on the common law and the third on statutory enactment. He said, first, that Liubinskas had such actual authority from Robinson to receive the moneys on his behalf that the payment to Liubinskas was in law a payment to Robinson. He said, alternatively, that Robinson had held out Liubinskas as his agent to receive the moneys and was therefore estopped from denying that a payment to Liubinskas was a payment to him, Robinson. He said, thirdly, that, if his claim at common law failed, he was entitled to succeed because the case fell within s. 34 of the Real Estate Agents Act 1930 Vict.. The three views thus put forward can hardly be regarded as fairly raised by the pleadings, but they were treated as open to the plaintiff both at the trial and on the appeal to this Court. On the other hand, the claim to the £360, if not expressly abandoned, was not pressed before us, and we think, as will be seen, that the most that the plaintiff can recover on any view is £540.