Rejfek v McElroy [1965] HCA 46

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Rejfek v McElroy [1965] HCA 46

ORDER Appeal allowed with costs. Order of the Supreme Court of Queensland (Douglas J.) and the judgment entered pursuant thereto set aide. In lieu thereof order that a new trial of the action be had and that the costs of the first trial be costs in the new trial.

Cur. adv. vult.

The Court delivered the following written judgment:—

August 13 Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

The appellants sued the respondents in the Supreme Court of Queensland for the rescission of a contract to purchase a milk run in the environs of Brisbane, and for damages, because of fraudulently untrue representations inducing the contract. The case was heard in Brisbane by Douglas J. before whom the male appellant gave evidence of the representations made by the male respondent. The male respondent denied that evidence. In the end the appellants pressed only one representation as the basis of their claims. As the learned trial judge viewed the whole of the material before him, he said that he simply had the uncorroborated oath of one party against the uncorroborated oath of the other as to the making of this representation. Upon one matter which did not directly bear on that question his Honour did not accept the male appellant's evidence, preferring that of the respondents, the female respondent having given evidence supporting the male respondent in this connexion; but this refusal to accept the appellant did not lead his Honour to reject the appellant entirely.

Feeling himself bound by decisions of the Full Court of the Supreme Court of Queensland to which we will refer, his Honour held that for the appellants to succeed in the action, the deceit of which the appellants complained had to be established to his satisfaction beyond all reasonable doubt. Having so directed himself as to the standard of proof and not having found the male appellant completely acceptable, his Honour said he was not so satisfied; and for that reason he gave judgment for the respondents.