Anderson v Densley [1953] HCA 47

High Court of Australia Williams, A.C.J. Webb and Taylor JJ. Anderson v Densley [1953] HCA 47

ORDER Appeal allowed with costs. Order that judgment below be set aside and in lieu thereof that judgment be entered for the defendant with costs including two refreshers.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 28 Williams, A.C.J., Webb and Taylor JJ.

The appellant is the defendant in an action in the Supreme Court of Queensland brought by the plaintiff, the respondent in this Court, to recover commission alleged to have been earned by the plaintiff as a commission agent for the defendant on the sale by the plaintiff of the defendant's grazing properties, Redmarley Pastoral Holding, containing sixteen square miles being portion 6 in the County of Auburn, parish of Quandong, and grazing farm No. 10209, containing 9,323 acres, being portion 2 in that county and parish, together with the plant and livestock thereon, for the total sale price of £14,000 or in the alternative the sum of £13,700 in or about the month of June 1951, or thereafter. The plaintiff claims £300 commission, that being the sum he alleges was agreed upon between the parties, or in the alternative £355 being commission payable at the prescribed rate on £13,700. The action was tried by Matthews J. and a jury. At the conclusion of the evidence his Honour submitted certain questions to the jury. Before setting out these questions and the answers of the jury it will be convenient to state a few facts. Between 1st May 1951 and 1st January 1952 the plaintiff was carrying on the business of a commission agent at Chinchilla in Queensland. In May 1951 the defendant orally instructed the plaintiff to sell the abovementioned land and chattels and livestock for the sum of £17,500 or such lesser sum as the defendant would accept. The plaintiff introduced as possible purchasers H. A. Pryce and his son, Noel Pryce, then an infant. Eventually two contracts were entered into on 12th June 1951 (Exhibits 9 and 10), the first for the sale of the real estate to Noel Pryce for £9,542 and the second for the sale of the livestock and chattels to H. A. Pryce for £4,458. Clause 6 of the second contract provided that possession of the property sold should be given and taken on the same day as possession was given and taken under the first contract and that the second contract was entered into conditionally upon completion of the first contract. These contracts were never completed but on 23rd February 1952, a third contract (Exhibit 13) was entered into between the defendant and Noel Pryce, who had attained his majority, for the sale of the defendant's two grazing properties and the plant and livestock for the sum of £13,700 and this contract was completed. The plaintiff admits that in respect of the first two contracts he had agreed to accept £300 as commission, the dispute at the trial being whether the commission was to be paid by the defendant or by the purchasers. The plaintiff said that he had arranged with the purchasers that they would pay the total sum of £14,300 for the two grazing properties and the plant and livestock thereon and of this sum £300 was to be paid by the defendant as commission, whereas the defendant said that the plaintiff had agreed to look to the purchasers for this commission. The third contract was entered into after the plaintiff had sold his business as a commission agent but he claims that he was the effective cause of this sale. The commission on a sale of £13,700 at the prescribed rates would be £355. The questions left by his Honour to the jury and their answers were as follows: