Charlick v Foley Brothers Limited [1916] HCA 27

21 C.L.R.} OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.)

CHARLICK . . : i 3 i : A PLAINTIFF ; AND

FOLEY BROTHERS LIMITED i i . De¥renpants.

Sale of Goods—Executory contract—Defence—Duty of legal adviser when pleading the 'Statute of Frauds—Effect of pleading the Statute—Statute of Frauds (29 Car. IT. c. 8), sec. 17—Usury, Bills of Lading, and Written Memoranda Act 1902 (Y.S.1.) (No. 43 of 1902), see 11.

It is the duty of the defendant's legal adviser before placing on the record a defence based upon the Statute of Frauds to explain fully such defence to his client, and point out its full meaning and effect, and the probable conse- quences of the defence in case the event turns upon a question of credibility.

TrraL oF ACTION.

An action was brought in the High Court by Fred Charlick, trading as Charlick Brothers and resident in South Australia, against Foley Brothers Limited, of Sydney, to recover damages for the breach of a contract of sale and delivery of certain butter above the price of £10, to be despatched to the plaintiff on 17th April 1915.

The defendants pleaded (inter alia) that it was agreed by and between the plaintiff and the defendants that if the Attorney- General for New South Wales should prior to 17th April 1915 in any way interfere with or prohibit, or attempt to prohibit, the export of butter from the State of New South Wales, or should request the defendants not to export or attempt to export any butter from the said State, the defendants should be released from any liability to deliver to the plaintiff any butter as alleged in the statement of claim, and should no longer be bound by the alleged

H.C. or A. 1916. ee

SyDNEY,

April 13, 14, 17, 19.

Isaacs J.

250,

H.C. or A.

1916. SS

CHARLICK v Fotry Brorners Lrp.

Aprit 19,

HIGH COURT (1916.

contract sued upon, and that prior to 17th April 1915 the Attorney- General for New South Wales did interfere with and prohibit the export of butter from New South Wales, and did request the defendants not to export any butter from the said State, whereby the defendants became released from their obligations. The defen- dants also pleaded the Statute of Frauds and the Usury, Bills of Lading, and Written Memoranda Act 1902 (N.S.W.) (No. 43 of 1902), see. 11.