Phillips v Ellinson Brothers Pty Ltd [1941] HCA 35

Cons Appl : C Marconi eae Sustems v BHP

M IT (2003) 128 Lady baal 8 Talia)

65 C.L.R.] OF AUSTRALIA. 221

[HIGH COURT OF AUSTRALIA.]

PHILLIPS ' 5 : 5 : : . APPELLANT ;

PLAINTIFF, AND

ELLINSON BROTHERS PROPRIETARY |p. .owpawr LIMITED fe

DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF VICTORIA.

Practice (Vict.)\—Power of trial judge to enter judgment contrary to verdict of jury H. ©. or A. —Rules of Supreme Court 1928 (Vict.), Order XXXVI., r. 32; Order XL., 7.5; 1941.

Order LVIIL., r. 4. ie Contract—Entire and indivisible—Partial performance—Statute of Frauds—Oral Gees! ct, §

variation—Statute of Frauds (29 Car. II. c. 3), sec. 4.

Upon an appeal from a judgment of the Supreme Court of Victoria ordered SyDNEY, by the trial judge to be entered for the defendant notwithstanding a verdict Nov. 21.

for the plaintiff returned by the jury :— i Rich, Starke,

6 3 ee . _. . MeTiernan and Rich and McTiernan JJ. were of opinion that, except upon application Williams JJ.

made pursuant to leave reserved to move for judgment, a trial judge has no power to order judgment to be entered contrary to the verdict of the jury, and that the appeal should therefore be allowed ;

Starke and Williams JJ. were of opinion that a trial judge has power to order judgment to be so entered where there was no evidence to support the

jury's verdict, that in the present case there was no such evidence, and that therefore the appeal should be dismissed.

The court being equally divided, the decision of the Supreme Court of Victoria (Martin J.) was affirmed.

Per Starke and Williams JJ.: Where the obligations of a contract of service are entire and indivisible, and the contract is required by the Statute of Frauds to be evidenced in writing, remuneration cannot be recovered for services rendered under it not amounting to a complete performance although there has been a subsequent oral arrangement to accept such sums as a sufficient performance ; such an arrangement amounts to a variation of the terms of the original contract and not to a mere alteration in manner of performance.