Holmes v Jones - Thomson Reuters

4 CLR 1692 Page 11907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)7 SR (NSW) 821; 14 ALR 89; 1907 WL 12437the misrepresentations made by the vendors inthe first instance.KeywordsSynopsisOpinionsGriffith C.J.O'Connor J.Isaacs J.Holmes v JonesHolmes and Others Defendants, Appellants;andJones and Others Plaintiffs, Respondents.On appeal from the Supreme Court of New SouthWales.19 August 1907, 20 August 1907, 21 August 1907,22 August 1907. SydneyGriffith C.J., O'Connor and Isaacs JJ.Action of deceit - Contract of sale induced by falserepresentation - Fraudulent intention -Misdescription of property sold - Inspection bypurchaser - Measure of damages - Evidence -Contradicting statements of adverse witness.*1693 In an action to recover damages forfraudulent misrepresentation inducing acontract, the plaintiff must prove that themisrepresentation was fraudulent, that thecontract actually entered into was in factinduced by the misrepresentation, and that hesuffered actual loss by entering into thecontract.So, where the owners of a pastoral property, inoffering it for sale, made false statements as tothe numbers of the stock upon it, but thepurchaser refused the offer, and afterwards,having been informed of the inaccuracy of thestatements made in the original offer,negotiated for a sale upon a totally differentbasis as regards the stock, inspected theproperty and stock, and as a result of theinspection, decided to purchase, and enteredinto a contract of sale upon the new basis, hecould not afterwards say that he relied uponThe duty of a vendor, who has made falsestatements in offering his property for sale, tocorrect them and bring the correction to theknowledge of the purchaser before acceptance,may be fulfilled by giving notice of the actualfacts to an agent of the purchaser with apparentauthority to receive such information on hisbehalf.The measure of damages in such an action isnot the same as that in an action for breach ofwarranty, but is the difference between theprice actually paid and the fair value of theproperty at the time of the purchase; and,therefore, it is not sufficient for the plaintiffmerely to show that the property sold was notworth as much as it would have been worth ifthe representations had been true; he mustshow that it was worth less than he actuallypaid for it.Broome v. Speak, (1903) 1 Ch., 586; andWaddell v. Blockey, 4 Q.B.D., 678, consideredand applied.The rule that, when a witness refuses in crossexaminationto distinctly admit that he haspreviously made a statement inconsistent withhis present testimony after the circumstancesof the supposed statement have been properlybrought to his notice, evidence may be calledby the other party to contradict him, applies aswell to the case of a witness called for the firsttime by the plaintiffs in reply as to one calledat an earlier stage of the case.Decision of the Supreme Court: Jones v.Holmes, (1907) 7 S.R. (N.S.W.), 17, reversed.APPEAL from a decision of the SupremeCourt of New South Wales refusing to grant arule nisi for a new trial.This was an action by the respondents againstthe appellants to recover damages forfraudulent misrepresentation inducing acontract, and for breach of warranty. At thetrial the jury found a verdict for the plaintiffsfor £2,802 10s.Copr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 21907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)The Supreme Court refused to grant a rule nisifor a new *1694 trial on the main groundstaken, and from that decision the presentappeal was brought. A rule was granted oncertain grounds not material to this appeal.The facts and the material portions of thepleadings are fully stated in the judgments.No evidence was given that the whole propertywas worth less than was paid for it.Evidence should have been admitted tocontradict statements *1695 made by theplaintiffs' witness in reply. It is immaterial atwhat stage of the case the evidence which it issought to contradict is given.Pilcher K.C. and Rolin, for theappellants.There was no evidence of fraudulentintention on the part of the defendants inmaking the misrepresentation, and, even ifthere was such evidence, there was noevidence that the misrepresentation inducedthe contract that was actually made.The false statements, if made at all, were madewith a view to a contract upon certain terms,but the plaintiffs refused to entertain a contracton those terms. Afterwards a full disclosurewas made by the defendants of the facts so faras they knew them, and the plaintiffsnegotiated for a contract upon a new basisaltogether, inspected the property, and, as aresult of that inspection, decided to purchase.The terms of the contract actually completedrendered the misstatements originally madequite immaterial. It is not sufficient for theplaintiffs to say that they were induced bythose misrepresentations to make the contract.They must show that it was reasonable forthem to be so misled. Under the circumstancesof this case no reasonable man could come tothe conclusion that the misrepresentationinduced the contract.[GRIFFITH C.J.-Assuming that there was afraudulent misrepresentation inducing thecontract, the proper measure of damages doesnot seem to have been put to the jury. Theplaintiffs are not entitled to be put into theposition they would have been in if thecontract had been performed in accordancewith the representations, but only to be put intothe position they would have been in if thecontract had never been made.ISAACS J.-If they made a profit out of thecontract as a whole, they cannot recoverdamages unless there was a breach ofwarranty.]Shand K.C. and D. G. Ferguson, for therespondents.This Court has only to considerwhether there was any evidence of fraud to goto the jury. There was abundant evidence uponwhich the jury might find fraud. Where aperson makes a representation which he knowsto be false, primâ facie it is fraudulent, and, ifmade to a person negotiating about a contractwith respect to the subject matter of thecontract, the jury may fairly infer that it wasmade with intent to induce the contract. Herethe defendants knew, or ought to have known,that the statements were false. Having oncemade false statements under circumstanceslikely to deceive the purchasers, the defendantswere primâ facie liable for the consequences,unless they made a clear and distinctcorrection, and brought it home to the minds ofthe purchasers. They must show that theirwrongful act did not cause the loss: Arnison v.Smith(1); Pollock on Torts, 5th ed., p. 286.There is no evidence of a clear correction inthis case. This is not a case of caveat emptor.There was no opportunity for such aninspection as would have enabled thepurchasers to test the truth of the statementsmade by the defendants. The size and nature ofthe property made a thorough inspectionimpossible under the circumstances. It ispractically a case of misrepresentation as to alatent defect, which could not be discovered bya reasonable inspection.As to the question of damages, the sum agreedupon between the parties was some evidenceof actual value. The defendants said that theproperty with so many stock upon it was worthso much. If as a matter of fact there were notso many as they stated, the jury might fairlyinfer that the property and stock were worth somuch less than the amount stated by thedefendants. In this case the only possiblemeasure of damages was practically the sameas for breach of warranty. [They referred toPage v. Parker(2); Williams on Vendor andCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 31907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)Purchaser, p. 729.] It is *1696 too late now forthe defendants to take objection to the measureof damages adopted at the trial.[GRIFFITH C.J.-We have in two casesdecided that a failure to take an objection at thetrial as to the measure of damages does notaffect the right of a party to take the point onappeal.]There was no objection in the Supreme Courtat all.[ISAACS J.-It is peculiarly the duty of theJudge to draw attention to the measure ofdamages. The stage at which the objection istaken can only affect the question of costs.]The Court will not enter a verdict on thisground, because the matter might have beenremedied if attention had been drawn to it atthe trial.[GRIFFITH C.J. referred to Davidson v.Tullock(1); and Arkwright v. Newbold (2).The first count of the declaration in this case, withwhich alone we are concerned, is a count for deceit.It alleges that the defendants, the presentappellants, with intent to induce the plaintiffs topurchase from the defendants a pastoral propertywith stock plant stores and effects for £15,000,represented to the plaintiffs that the number ofcattle upon the stations was then about 2,942, andthat the number of the bullocks born in 1903 orolder was then about 1,337, whereas the numberswere much less, and that these statements wereuntrue to the knowledge of the defendants. Theplaintiffs say that by these representations the*1697 defendants induced the plaintiffs to purchasethe stations and stock, &c. Now, the actual contractfor the sale of the stations by the defendants to theplaintiffs was dated 3rd January 1906, and thealleged representation was made, if it was made atall, in a letter from the defendants' agents to theplaintiffs of 20th November 1905. The complaint isthat the plaintiffs were induced to enter into thecontract of 3rd January 1906, by therepresentations alleged to have been made on 20thNovember 1906. The first observation to be madeis that it is clear that, in order that the action maybe maintained, the representation must have beencontinuing down to the time when the contract wasentered into, and must have been believed by theplaintiffs at that time, so as to be at that time aninducement to enter into the contract.ISAACS J. referred to Broome v. Speak(3);Waddell v. Blockey(4); Mullett v. Mason(5);Marshall v. Hubbard(6).]The evidence tendered by the defendants incontradiction of the plaintiffs' witness in replywas not admissible at that stage. The Judge hada discretion. Moreover the defendants had notlaid the proper foundation. The evidencetendered would not have been necessarilyinconsistent with that given by the witness.Pilcher K.C., in reply.Cur. adv. vult.August 22Griffith C.J.The representation, as I have said, was made in aletter written by the defendants' agents. The subjectmatter of the contract was a pastoral property inQueensland called Bendeena. The plaintiffs hadshortly before become the owners of an adjoiningpastoral property which was to a certain extentdependent for water on the defendants' property,and the plaintiffs were on that account anxious tobuy it. Some negotiations, the nature of which isnot fully explained, had been going on between theparties before 20th November, and on that date thedefendants' agents wrote to the plaintiffs a letter inwhich they said "acting as agents for the vendors,"who were trustees of the estate (under a will) "wenow place under offer for your inspection andanswer as to approval or otherwise, on or before20th December next," the station in question,"together with all improvements thereon and thefollowing stock, the number and ages being onlyapproximate, and not guaranteed, cattle, malesabout 1,000 bullocks 0's and older, 67 No. 1s, 30No. 2s, 240 No. 3s, 167 No. 4s, 94 calves and 19bulls, females" of certain numbers mentioned,"total cattle about 2,900. Horses about 200 head.Price, for the cattle, five pounds five shillings perhead with all calves under six months old given in.For the horses, four pounds ten shillings per head.Copr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 41907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)Also three thousand pounds as part compensationfor the bore and freehold land, the leasehold land tobe given in."It appears that before this time the plaintiffs hadwritten to a Mr. Campbell, from whom they hadpurchased the adjoining *1698 station, telling himthat they were anxious to buy the defendants'Bendeena station, and they asked him to puthimself in communication with one of thedefendants who lived at Dubbo, in New SouthWales, and endeavour to make a bargain for thepurchase of the property. The instructions given toMr. Campbell were contained in a letter of 4thNovember, written from Hobart. The plaintiffssuggested various devices to induce the vendors toaccept a lower price, and the terms of the lettershowed generally that the plaintiffs were anxious tobuy. In pursuance of that letter Campbell visitedone of the defendants, Mr. Sefton, at Dubbo, andhad a conversation with him on the subject of theproperty. According to Sefton's evidence, he gaveCampbell full information as to the stock then uponthe property, but according to Campbell's evidencethat was not done, or he did not recollect it. Butthere was, at any rate, a conversation about thecattle, and after it Campbell asked other persons tofind out all about the cattle and to go to Sefton andascertain the exact numbers. So much he admitted.That was all before the letter of 20th November,which is alleged to contain the misrepresentation. Ipause here to remark again that the plaintiffs mustshow that the representation contained in that letterwas understood by them to be continued up to themoment at which the contract was entered into inJanuary. The letter of 20th November was in factinaccurate. The number of cattle born in 1903 andearlier mentioned in the letter was actually 1,337.The total number mentioned was 2,912. There werenot, however, at that time 1,337 cattle of those ageson the station. A good many had been sold beforethe letter was written. This letter, written by thedefendants' agents, was therefore inaccurate. Butthere is no suggestion that the defendants' agentsknew of any mistake in the numbers. There was nodishonesty whatever on their part. How the mistakearose is abundantly clear. It appears that thedefendants, as trustees of the estate, were in thehabit of getting quarterly returns showing thetransactions on the property, and in the return forthe quarter ending 30th June the figures showed thenumbers of the cattle on the station at that date, butduring the quarter ending 30th September many ofthese cattle had been sold, and a later return as of30th *1699 September gave correct information ofthe transactions up to that date. The instructionsgiven to the agent, on which he wrote the letter,were given in September and founded on the Junereturn. Even these, however, were not correct,because some of the cattle had been sold since theJune return. The statements contained in the letter,therefore, were not accurate, and in one sense thedefendants ought to have known that they were nottrue. But that does not prove that the representationwas fraudulent, or that it would have beenfraudulent, even if made by the defendantsthemselves, if they had honestly forgotten the lastreturn and given information taken from the earlierreturn. It might be careless or improper to makesuch a misstatement, but it would not be conclusiveevidence of fraud. Possibly a jury might draw theinference of fraud under those circumstances, but itis not necessary to express any opinion on thequestion. I will only say that I am not satisfied thatthat inference ought to be drawn under suchcircumstances as exist in this case. If the offer of20th November had been accepted, there would,perhaps, have been a warranty by the defendantsthat there were then about 1,337 cattle-not thatprecise number but thereabouts-on the station, and,if it had turned out that the numbers fell very farshort of that number, there would have been abreach of the warranty, but one from which thedefendants, the vendors, could not have gainedanything. The result of such a breach would havebeen that the purchasers might have refused toperform the contract on the ground that theproperty offered for delivery was substantiallydifferent from that which was sold. But it isdifficult to see how a misrepresentation made in theform of a warranty can be evidence of a fraudulentintention to deceive the other party to the contract.The plaintiffs did not accept the offer of 20thNovember. Having, as we may assume, the benefitof Campbell's report, they wrote on 2nd Decemberfrom Hobart to the defendants' agents:-"Yours of20th ult., giving offer of Bendeena and YunnermanStations duly received and after carefullyconsidering same, in view of the long intervalwhich must necessarily elapse before Mr. Easy hasinspected and we receive his report, we havedecided to make the proposals in the form of twooptions, as per enclosure." *1700 So that it appearsincidentally that they had in the meantimeinstructed another gentleman, who was in fact themanager of the adjoining station, to make a fullinspection of the property and report to them.While this was being done they wrote this letterand, without further reference to the defendants'previous offer, ask the defendants to make anotheroffer in an alternative form, which they called twooptions, the first being the option of purchase of theland, with improvements, plant, &c., but withoutstock, for £5,000, the other the option of purchaseof the land, &c., with stock for £16,230, "assumingCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 51907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)the number of cattle 1 year and upwards to be2,740 and horses 200, any number under or over tobe allowed for at £4 10s. per head." A note wasadded showing how they made up the amount byreckoning 2,740 cattle of one year and over, calvesgiven in, and 200 horses at £4 10s., making£13,230, and the land, £3,000. The number, 2,740,is the number of cattle mentioned in the letter of20th November, deducting the animals described ascalves. But it is to be noticed that in this proposal,when the plaintiffs ask the defendants in this letterto make a new offer, they do not describe the cattleas of the ages mentioned in that letter, but under adifferent description altogether, "one year andover," for which they say they are willing to pay atthe rate of £4 10s., per head. In the meantime Easywent to inspect the station. He was there inDecember for two or three days. According to theuncontradicted evidence, which must be taken to betrue, for Easy was afterwards called by theplaintiffs and was not asked any questions on thesubject, he asked for the last returns. Those werethe returns of 30th September. The witness Baker,manager of the station, said:-"He asked for the lastreturns. I had a copy of the September returns. Heasked me to read out the numbers for him, which Idid. I went through the paddocks with him." Theplaintiffs received Easy's report on 14th December,and on 19th December telegraphed from Hobart totheir agents in Sydney authorizing them to offer£15,000 for the property, stock and plant, on theterms "walk in and walk out." But in the meantimethe defendants' agents had acknowledged theplaintiffs' letter of 2nd December, saying "Wecould not do any business in terms of your offer"(he had been to see his principals at Dubbo), "andthe trustees *1701 instructed us to make you a freshoffer, open to you until 20th December, as to whatthey are prepared to do." He then made three offers,first, to sell Bendeena station with plant &c. for£6,000; second, to sell at £ 4 10s. per head for allcattle and horses (say 2,829 of the former and 257of the latter) to be mustered, and 400 unbrandedcalves and 40 foals given in, and £3,000 for therun; or third, a "walk in and walk out sale," thepurchasers to pay for 2,600 cattle and 225 horses at£4 10s. and run at £3,000 with improvements,which amounted in all to £15,700. So that therewere three offers, to sell the run alone, to sell itwith stock at a specified price per head, or to sellthe whole concern for a lump sum, on what iscalled a "walk in and walk out contract." I remarkthat the last is in substance a sale of a specificarticle with all faults.The description of the cattle on the run in this letteris quite different from that in the letter of 20thNovember which contained the alleged fraudulentrepresentation. The numbers are different, 2,829,"all cattle" without any reference to ages ordescriptions, and the number of the horses isdifferent. 400 unbranded calves are mentioned, asagainst 200 in the previous letter, and 40 foals. Asa matter of fact the figures that I have just readexactly correspond with the figures in theSeptember return read to the plaintiffs' agent on thestation before this letter was written. Now, that wasthe last communication made by the defendants tothe plaintiffs. It contained a perfectly true statementof the facts as known to the defendants, a statementof the facts communicated to the plaintiffs' agentwho had been expressly sent to ascertain the truth.And it is said that, in face of that, the plaintiffsrelied, not upon the statement made in this letter,not upon the information given to their agent,which corresponded with that statement and wasalso true, but upon a communication made nearly amonth before as a basis for an intended contractwhich had entirely gone off. Having thisknowledge, and Easy's reports, the plaintiffs did notaccept either offer. But they offered for a specificproperty, inspected by Easy and reported upon byhim, a lump sum of £ 15,000, "walk in and walkout." And in the contract drawn up on 2nd Januaryone of the terms is in these words: "The sale isunder the usual *1702 walk in and walk outconditions and no allowance or abatement shall bemade or allowed for any deficiency in the area ofthe lands or the numbers of stock mentioned and norequisitions shall be made in respect of the saidleases." It appears to me that on theseuncontroverted facts the plaintiffs, on their owncase, relied upon the report of Easy, and wereinduced to enter into the contract because, fromwhat he had told them, they regarded £15,000 as agood price to pay for the whole concern. It is notopen to the plaintiffs to say, under thosecircumstances, that they relied upon the innocentmistake made some time before as the basis of anintended contract which never came to anything. Itappears to me to be common sense as well as lawthat, when a purchaser chooses to rely upon hisown judgment or upon that of his agent, he cannotafterwards say that he relied upon a previousrepresentation made by the vendor.I am therefore of opinion that the case of fraudentirely failed, and that there was nothing to go tothe jury. On the contrary I think it was proved, asfar as is reasonably possible to prove a negative,that the plaintiffs did not rely upon themisrepresentation, even if there was amisrepresentation or fraudulent misstatement in theletter of 20th November. I have said nothing aboutthe alleged false representation as to the number ofbullocks being 2,900, because there is absolutelyCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 61907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)no evidence to support the allegation that anyfraudulent representation was made on that point.Another point was made as to the damagesassessed. The case was treated at the trial as if theplaintiffs were entitled to the same damages forfraudulent misrepresentation as if the action hadbeen for breach of warranty. In support of thatview, two American cases were cited to us inwhich it was held that in an action for fraudulentmisrepresentation the plaintiff is entitled to recoverdamages upon the same measure as in an action forbreach of warranty. That, in my opinion, is not thelaw of England. Such a rule would lead to the mostextraordinary results, and it would, in effect, doaway with the benefit of the Statute of Frauds to agreat extent. The true rule, as I understand it, waslaid down by Buckley J. in the case referred *1703to by my learned brother Isaacs, Broome v.Speak(1), which was an action against directors ofa company, claiming damages for fraudulentmisrepresentation in a prospectus. The learnedJudge there said:-"The result of this is that theplaintiff is entitled to damages as against all thedefendants. The measure of damages is well fixed.It is the difference between the price which theplaintiff paid for the thing, and the fair value of thething at the date at which he got it." That case wenton to the Court of Appeal, and further to the Houseof Lords under the name Shepheard v. Broome(2),and was there affirmed. I will only refer to oneother authority, Waddell v. Blockey(3). That wasan action against an agent for fraudulently inducinghis principal to buy a quantity of rupee paper byrepresenting that it belonged to third persons.Bramwell L.J. said (4):-"The right mode of dealingwith the damages is to see, what it would have costthe insolvent to get out of the situation, that is,what is the price at which he could have sold thepaper? Suppose that a horse has been sold with afraudulent warranty, and suppose the horse is resoldwith knowledge of the defect which had beenfraudulently concealed, the damages to berecovered would be the difference in the pricesobtained at the two sales." And Thesiger L.J. (5),after referring to Twycross v. Grant(6) in which thesame rule had been laid down, referred to Davidsonv. Tulloch(7) as authority for the proposition that"the proper mode of measuring the damages is toascertain the difference between the purchasemoneyand what would have been a fair price to bepaid for the article at the time of the purchase."That, I conceive, is the English rule of law, and anyother rule would lead to the most extraordinaryconsequences. Suppose that a man was induced byfraudulent misrepresentation to give £10,000 for aproperty worth £20,000, on a representation that itwas worth £30,000. If the law were as the plaintiffscontend, the purchaser would be entitled to recoverfrom the vendor the whole of the purchase money,and have a property worth £20,000 for nothing,*1704 and would get that as compensation for theinjury done him by the defendant.In my opinion, therefore, the plaintiffs' caseabsolutely fails from every point of view. There isno case of fraud, and, so far as appears, theplaintiffs suffered no loss. The verdict should,therefore, be entered for the defendants on the firstcount.There was another minor point taken, which it isnot absolutely necessary to decide, but upon which,as it is of general importance in practice, it isperhaps right that we should express an opinion. Irefer to evidence tendered by the defendants as to aconversation between one of the defendants andCampbell, who was called by the plaintiffs in replyto contradict that evidence, and in crossexaminationrefused to make certain admissions.Evidence was then tendered by the defendants tocontradict him, relying upon the statutory rule that,when a witness refuses in cross-examination todistinctly admit that he has previously made astatement inconsistent with his present testimony,evidence may be called by the other party to provethat he has done so. The learned Chief Justice whopresided at the trial refused to allow the evidence ofsuch a statement to be given on the ground that itcould not be given at that stage of the case, takingthe view that the section does not apply to the caseof a witness called by a plaintiff in reply. But thereis nothing in the Statute to limit the admissibility ofevidence of that sort so as to exclude its applicationto the case of a witness called later than thedefendant's case in chief. There is no rigid rule asto the point at which evidence is to be closed. Theburden of proof may change from time to timeduring the course of a case. In the case of an actionfor defamation the plaintiff proves the publicationof defamatory matter. Then the defendant mayprove that the occasion was privileged. Thenevidence may be given by the plaintiff of expressmalice, then evidence by the defendant to rebut thatevidence. It appears to me that the meaning of thesection is merely this, that evidence of that sort isadmissible and is not to be regarded as res interalios. It is admissible evidence, and the Statuteintends that it may be given in any case in whichevidence can properly be offered by the partytendering it to contradict that given by the otherparty. *1705 A defendant cannot tender evidence incontradiction until the plaintiff's evidence has beengiven, and if that evidence is given for the first timein reply, the defendant cannot tender the evidenceCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 71907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)in contradiction earlier. The Statute, in effect, putsevidence of that sort on the same footing as anyother evidence to contradict, and if the evidencesought to be contradicted is first given by theplaintiff in reply, the defendant is entitled to answerit on the ground that it is new matter. I express thatopinion because it is a point of the general interest,and because the learned Chief Justice appears tohave taken the opposite view. In the present case,however, I do not think that the proper foundationwas laid in cross-examination for the admission ofthe evidence.For the reasons I have given I think that the appealshould be allowed and that a verdict should beentered for the defendants on the first count.O'Connor J.I am of the same opinion and have very little to addon the facts, but I wish to make some observationson the two grounds of law upon which theappellants relied. Their application was to have theverdict for the plaintiffs on the first count set asideand judgment entered for them. To succeed in thatthey must satisfy the Court that there was noevidence on which as a matter of law the jury couldhave found for the plaintiffs upon the first count. Inother words, they must show that there were nofacts in evidence from which the jury couldreasonably draw the inference that must be drawnbefore the plaintiffs can succeed. Now, there isonly one representation which is in question here.The facts and the course the case has taken havemade the other representations immaterial. The onematerial representation is that there were on thestation 1,337 cattle of the number 3 brand andolder. I take it that the reference to number 3 meansthis:-The cattle calved in that year were branded asof that year, and therefore the representation as tothe number of the brand contains a representationas to the age. I think it may be assumed, whendealing with the case from the point of view whichI am now putting, there was evidence for the jurythat the statement made by Trebeck, and *1706authorized by Sefton's letter of 20th September,that there were at the time of the statement 1,337cattle of the number 3 brand on the station, was astatement that was fraudulent in the legal sense.And I think it may also be taken that, if the offer ofTrebeck of 20th November in respect of which thestatement was made was at that time accepted,there would have been some ground upon whichthe jury might have come to the conclusion that thecontract thus made had been induced by fraudulentmisrepresentation. But before the plaintiffs cansucceed they must go much beyond that. They mustshow, not only that the representation wasfraudulent, but also that that fraudulentrepresentation induced the contract which wasafterwards entered into upon 3rd January. It is uponthat part of the case it seems to me that theplaintiffs have entirely failed to put before the jurysufficient evidence to justify the jury as reasonablemen in coming to the conclusion to which theycame. Now, the requirements of the law withrespect to false representations materially inducinga contract is very clearly stated by Sir John RomillyM.R. in the case of Pulsford v. Richards (1):-"Withrespect to the character or nature of themisrepresentation itself, it is clear that it may bepositive or negative; that it may consist as much inthe suppression of what is true, as in the assertionof what is false; and it is almost needless to add,that it must appear that the person deceived enteredinto the contract on the faith of it. To use theexpression of the Roman law, so much commentedupon in the argument before me, it must be arepresentation dans locum contractui, that is, arepresentation giving occasion to the contract, theproper interpretation of which appears to be theassertion of a fact, on which the person enteringinto the contract relied, and in the absence of whichit is reasonable to infer he would not have enteredinto it, or the suppression of a fact, the knowledgeof which it is reasonable to infer would have madehim abstain from the contract altogether." Wetherefore have to inquire whether there was anyevidence from which the jury could reasonablydraw the inference that it was the assertion made on20th November with regard to the *1707 numbersof these cattle, of number 3 and older, that inducedthe making of the contract of 3rd January.Now, it is true that, if a fraudulent statement ismade which is calculated to induce the person towhom it is made to enter into the contract, theinference may be drawn that the statement wasmade with the intention of inducing the contract.But that is an inference which may be rebutted bythe facts. It appears to me that in this case the factsaltogether rebut the inference that themisrepresentation in the proposal of Trebeck of20th November was an inducing cause in themaking of the contract. It is true that Mr. Burgesshimself swears that he did believe the statement tobe true, and that that induced him to make thepurchase. But that is of no moment whatever if, asa matter of fact, it was not reasonable on his part todraw that conclusion. If the person who is offeringan article for sale acts in such a way that anothermay reasonably infer that a certain representation istrue, that representation may be taken to have beenCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 81907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)made to induce that other to purchase the articleoffered. But unless it may reasonably be inferredfrom the vendor's conduct or words that therepresentation was made for that purpose, the lawdoes not cast upon him the responsibility for therepresentation. His words and acts must be lookedat and regarded as an ordinary reasonable businessman would look at them. The question for ourdetermination is whether, considering all thecircumstances which occurred, particularly thenegotiations which took place between the proposalof Trebeck on 20th November and the actualacceptance of the offer on 19th December, theinference can be reasonably drawn that the contractwas induced by the misrepresentation. It is notnecessary for me to follow my learned brother theChief Justice in his statement of the facts. I entirelyagree with him in the view he has expressed. Iwould only observe that it appears to meimpossible to say that the representations of 20thNovember materially induced the contract finallymade when we consider the change in the form ofdealing between the proposal of 20th Novemberand the contract afterwards entered into, theinspection by Campbell, which, though it tookplace before the actual proposal and was not adirect inspection for the purpose of looking at thestock, was one which *1708 procured informationabout the stock, and when we remember thatCampbell's inspection was followed by aninspection of the stock made by Easy for theexpress purpose of informing the appellants. In myopinion, therefore, no jury could reasonably cometo the conclusion that the misrepresentation inTrebeck's letter of 20th November was aninducement to the making of the contract of 3rdJanuary. That being so, the plaintiffs failed on thatpoint, and on that ground alone the defendants areentitled to have a verdict entered for them.There is another question on which it seems to meclear that it is impossible for the plaintiffs to holdtheir verdict. It is just as material a portion of theircase to prove damages resulting from the makingof the contract as to prove the misrepresentationitself. But there is no evidence for the jury of anydamage arising out of the making of the contract. Itseems to have been assumed at the trial that thekind of evidence necessary to prove damage for abreach of warranty is sufficient in a case of thiskind. That is not so. The cases which have beencited from Sedgwick's Ruling Cases no doubtappear to show that in some States of America thelaw is as was contended for by the respondents. Butit does not appear that even in America that is thegeneral law, because I gather from the statementquoted from Marshall v. Hubbard(1) that the law inAmerica is just as it is in England, that there mustfollow upon the making of the contract induced byfraudulent misrepresentation some resultingdamage which must be proved before the plaintiffcan succeed. It was said in that case by the Judge insumming up to the jury, and the statement wasafterwards approved by the Supreme Court of theUnited States (2):-"But there are certain otherelements of fact which necessarily enter into thisdefence. Not only must the representations bemade, not only must they be fraudulent, and notonly must it appear that the party relied, and had aright to rely, upon them, but it must also be shownthat the representations were material to thecontract or transactions which took place betweenthe parties; and, further, that injury has beensustained, damage has resulted to the defendantfrom the alleged fraudulent representations." Thatstates the *1709 law in exactly the same way as itis laid down in the cases cited by my learnedbrother the Chief Justice. I need not repeat thequotations, and as to them I only wish to say that Ientirely concur in the statement of the law as laiddown in Broome v. Speak(1). Applying that law tothe facts of the case, the only question is, has therebeen any evidence of this damage? Undoubtedlythere is some evidence of damage for a breach ofwarranty. But the damage to be proved here doesnot rest on the same principle. Damages for abreach of warranty are given on the principle that,where a person contracts to do something and failsto do it, he must put the other party in the sameposition as if the thing had been done, so far asmoney can do it. But where the complaint is thatthe contract has been induced by a fraudulentmisrepresentation, the remedy for that wrong is toput the party, who has been induced to make thecontract, as far as possible in the position he wouldhave been in if he had not entered into the contract.To put him into that position he must berecompensed for the damage he has sustained byentering into the contract. In order to ascertain theextent of that damage the whole contract must belooked at. If it should turn out that though in onerespect the contract is less beneficial to the otherparty than it would have been if the representationhad been true, yet in other respects it is soprofitable that on the whole he loses nothing, nodamage has resulted from his entering into thecontract and he cannot recover. Thus damage is anessential factor in the cause of action.Under these circumstances it appears to me that theprinciple must be applied that material damage is anecessary element in the action, and damage hasnot been proved. On that ground also the verdictshould be entered for the defendants.Copr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 91907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)With regard to the point of evidence I need addnothing to what has already been said.Isaacs J.I agree with the opinions just expressed, and wouldlike to add my own reasons out of respect to theJudges of the Court from which the appeal comes. Iagree entirely with what has fallen from my learnedbrother O'Connor with *1710 regard to the firstpart of the plaintiffs' case, namely, theestablishment of fraudulent misrepresentation inthe first instance. Whatever view I mightpersonally have taken of the facts, I am notprepared to say that there is no evidence uponwhich the jury might reasonably, if they thought fit,have come to the conclusion that the statements asto the numbers and ages of the cattle in the letter of20th November, which were undoubtedly untrue infact, were also fraudulent. The jury were the propertribunal to decide that question, and I am notprepared to say, if I had to decide it, that I shouldhold that there was no evidence. It is not, however,in the view I take of the case, necessary to decideit. But supposing that established. The plaintiffshave not proved all they are bound to prove inorder to establish successfully their claim againstthe defendants on the ground of deceit. Now, inapproaching this portion of the case I am fullysensible of the rule, and I give due weight to it inmy mind, that the verdict of a jury is not to be setaside unless it is one that no reasonable man couldhave come to. I am very clear, however, on thefacts of this case that, as to the inducement and asto the amount of damages, or as to whether anydamage has been proved at all, the rule does applyin this case, that there was no evidence upon whichthe jury could reasonably find as they did. Theplaintiffs have the onus of proving that therepresentations they complain of were material, andthat they were induced to act upon them. If nothingmore appeared than the letter of 20th Novemberand a contract following upon that, I think it wouldbe very difficult to say either that the plaintiffswere not induced to act upon the statements in thatletter or that they were not material. They wereundoubtedly material in fixing the average price ofthe cattle, and, consequently, the price to be paidfor the whole property, supposing a count weretaken. But a good deal more does appear in thecase. The matter does not rest at that point. It isestablished law, as I understand it, that, evengranting that a defendant has made a representationthat is both false and fraudulent, it may be that theplaintiff has not relied upon it, and if he has notrelied upon it then he has no case. There is a veryold case showing the distinction *1711 between thetwo positions, Lysney v. Selby(1). There Holt C.J.put the two positions clearly. That was a case inwhich the defendant was sued for fraudulentrepresentation regarding the rental of some housessold to the plaintiff. In giving judgment Holt C.J.said (2):-"If the vendor gives in a particular of therents, and the vendee says, he will trust him andinquire no farther, but rely upon his particular;there if the particular be false, an action will lie: butif the vendee will go and inquire farther what therents are, there it seems unreasonable he shouldhave any action, though the particular be false,because he did not rely upon the particular." InRedgrave v. Hurd(3) Jessel M.R., referring toAttwood v. Small(4), quoted one paragraph fromthe opinion of the Earl Devon, which he says is thelaw:-"The whole course of the proceeding from itscommencement to its close tends to show that thepurchasers did not rely upon any statements madeto them, but resolved to examine and judge forthemselves." And further on (5), he quoted aportion of Lord Brougham's judgment in the samecase:- "We find that the purchasers did not relyupon the representation, but said, 'We will inquireourselves,' that is the second ground; it is the sameas Lord Devon's ground, and also would be a goodanswer, though it was not taken by LordCottenham." These then being the principles, thequestion is what will be sufficient to displace theprimâ facie presumption that the plaintiffs did relyupon the false representation and act upon it. As tothat also, Redgrave v. Hurd(6) helps us. JesselM.R. said:-"If it is a material representationcalculated to induce him to enter into the contract,it is an inference of law that he was induced by therepresentation to enter into it" (that has been shownsince to be wrong, it is an inference of fact, not oflaw) "and in order to take away his title to berelieved from the contract on the ground that therepresentation was untrue, it must be shown eitherthat he had knowledge of the facts contrary to therepresentation, or that he stated in terms, or showedclearly by his conduct, that he did not rely on therepresentation." In Arnison v. Smith(7), LordHalsbury L.C. said:-"It was said, *1712 and I thinkjustly, by Sir G. Jessel in Smith v. Chadwick(1),that if the Court sees on the face of the statementthat it is of such a nature as would induce a personto enter into the contract, or would tend to inducehim to do so, or that it would be a part of theinducement to enter into the contract, the inferenceis, if he entered into the contract, that he acted onthe inducement so held out, unless it is shown thathe knew the facts, or that he avowedly did not relyon the statement whether he knew the facts or not."This case was cited by the plaintiffs for the purposeof establishing the position that the correction ofthe misrepresentation must be clear. But it gives noCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 101907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)help here in that respect because his Lordship saidthe circular was itself fraudulently concocted. Hesaid (2):-"The prospectus appears to me to havebeen drawn up with the aim of conveying a wrongimpression under words sufficiently near the truthto escape being treated as a misrepresentation, andI think that the circular was framed with a similarview, to avoid bringing to the minds of theplaintiffs the real facts of the case while statingenough to enable the defendants to say that theplaintiffs were informed of those facts." That is notan illustration at all apposite to the present case.Now, if these are the principles, then the mainquestion we have to consider is whether, assumingthat there was a misrepresentation in the firstinstance, the plaintiffs are shown not to have reliedupon that misrepresentation. I think thedocumentary evidence and the uncontradicted oraltestimony are absolutely conclusive that theplaintiffs did not rely upon that misrepresentation.The letter of 20th November is the letter that offersto place under offer for inspection and answer theproperty until 20th December next as the limit. Thenumber and ages of the cattle are stated as onlyapproximate, and not guaranteed. Mr. Burgessdetermined to inspect, and a letter was put inevidence, Exhibit D., which, although written byTrebeck to Sefton, was put in by the plaintiffs, andis evidence of this, at all events, as to what thedefendants thought Mr. Easy's position would be. Itstated that Mr. Burgess had decided to inspect theproperty, and that he had *1713 wired to his agentto inspect and report upon it, so that, at all events,as far as the minds of the defendants wereconcerned, they honestly believed that Mr. Easywould have full authority to see everything, heareverything, and report upon it to his principals. Theletter of 2nd December, written by the plaintiffBurgess himself, is distinct to my mind that he haddetermined not to buy the cattle until hisrepresentative Easy had made a proper inspection,and he describes what inspection he considers aproper inspection, "that is to say such a one aswould warrant us in determining upon the purchaseof the stock forthwith." That seems to me to showat the very threshold that he is not going to relyupon the representation of 20th November, but onthe examination by his own representative Easy.That appears in the first place to form a strongobstacle to the inference of reliance upon therepresentation in the letter of 20th November. Thematter, however, goes further. Mr. Easy was sentup. He went to the station. He met Mr. Baker andstayed, apparently, as long as he wished. There isno evidence that he did not see all that he wanted tosee, and when he had been shown as much as hewanted he asked for the latest returns. Mr. Bakerhad a copy of the September return, and was askedby Mr. Easy to read out the numbers of the cattle.That must mean the respective numbers of thecattle. It was a material point, for Mr. Burgess saysthe whole question turned upon the ages of thecattle, so we may assume that he had instructed orexpected his agent to find out all about them. Theagent did so and obtained a knowledge of the exacttruth. I think there can be no doubt that if, insteadof the agent, Mr. Burgess had been there himself,he could not have been heard to say that he reliedany longer upon the representations as to numbersand ages in the letter of 20th November. On 9thDecember Mr. Trebeck writes to the plaintiffssaying that no business could be done upon theoffer of 2nd December, and a fresh offer is made.The offer, which is declared by that letter to beopen to 30th December, at least open up to thatdate for the purpose of seeing whether Mr. Burgesswill buy at all, was open for a month longer toenable him to say whether he will buy the stationalone or with cattle, and, more than that, he has afurther choice, if he does buy with *1714 cattle, tobuy on one of two distinct options regarding them.The report of Easy reaches him on 14th December.He has full time to consider the matter, and on 19thDecember he takes advantage of this offer anddeclares that he will buy, and takes further time todeclare which of the two options he will select. Onthe 19th he declares he will purchase and makes uphis mind to give £15,000 for property and stock,"walk in and walk out." It was urged on behalf ofthe plaintiffs that it did not appear that Mr. Easyhad authority to receive information on behalf ofMr. Burgess regarding the number and ages of thecattle from Mr. Baker. I think that that is disposedof on the principle that an agent (he was clearly anagent for some purposes) has either the actualauthority given him, or the authority within theapparent scope of his employment. Looking at itfrom the standpoint of the defendants, what wouldit have been natural for them to conclude as to theauthority of Mr. Easy when he inspected? A personauthorized to receive information may receive itthrough his eyes or his ears. Whether Mr. Easycommunicated his information to his principals ornot we do not know. We know that hecommunicated something on 14th December.Whether he communicated truthfully and fully allthat he learnt we do not know, because theplaintiffs themselves did not put in or tender thatevidence. But I take it to be immaterial from thedefendants' standpoint whether he did or did not,and I think it was also within the defendants' poweras a matter of law to oppose the admission ofevidence showing that Easy had not communicatedfully. There are two authorities bearing upon thisCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 111907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)part of the case. One is Tanham v. Nicholson(1), acase where service of a notice to quit at the houseof a tenant upon a person whose duty it was todeliver it to the tenant, was held a good service onthe tenant for the purposes of ejectment. The Houseof Lords held that the presumption was that thenotice did reach the tenant, although in fact it wasnot delivered to him, and that the question was notwhether the servant performed his duty but whetherhe was to be considered the agent for the purposeof delivering the notice. Lord Hatherley L.C.pointed out the principle; he said (2):-"If once youhave constituted your servant *1715 your agent forthe purpose of receiving such a notice, the questionof fact as to whether that servant has performed hisduty or not, is not one which is any longer incontroversy. When once you constitute yourservant your agent for that general purpose, serviceon that agent is service on you-he represents youfor that purpose-he is your alter ego, and serviceupon him becomes an effective service uponyourself." He had pointed out a little earlier thatyou cannot in such a case give evidence to provethat the notice had not in fact been served.The same principle was applied in a case ofinsurance agency, where it was proved that therewas a distinct misrepresentation in the applicationwhich was the basis of the contract of insurance,the proposer having a defect which was obvious tothe agent who took the proposal. Themisrepresentation was that the man had no physicaldefect, whereas he had only one eye. It was heldthat the agent must have known of it, and that thecompany was bound though the agent had notcommunicated it to them. That was the case ofBawden v. London, Edinburgh and GlasgowAssurance Company(1). So that the principle isplain that, if once a person constitutes another hisagent to stand in his place, he takes theresponsibility of that person doing his duty to hisprincipal. The other party is not concerned withthat. It seems to me beyond question that Mr. Easybound Mr. Burgess and the other plaintiffs by theknowledge he obtained in December, just as muchas if Mr. Burgess had obtained the informationhimself; and if he had, he could not have beenheard to say that he was then relying upon theprevious statement, however fraudulent it may havebeen.With regard to the damages the position seems tome perfectly clear. The cases referred to by mylearned brothers are distinct upon the point. I shallonly refer shortly to a few cases to show theprinciple in which damages are to be measured inan action of deceit. In Thom v. Bigland(2) Parke B.said:-"It is settled law that, independently of duty,no action will lie for a misrepresentation, unless theparty making it knows it to be untrue, or makes itwith a fraudulent intention to induce another to acton the faith of it, and to alter his position to hisdamage." That is *1716 the keynote, the alterationof the position he was in before the action of thedefendant which caused him to act to his owndetriment. In Edgington v. Fitzmaurice(1) BowenL.J. said:-"But, lastly, when you have proved thatthe statement was false, you must further show thatthe plaintiff has acted upon it and has sustaineddamage by so doing: you must show that thestatement was either the sole cause of the plaintiff'sact, or materially contributed to his so acting." Hereferred to Clarke v. Dickson(2) as the case wherethat rule was laid down, in the words which Iquoted during argument, that you have to show thatreal damage was caused by acting upon thefraudulent statement or representation. And in thecase Hyde v. Bulmer(3), Bovill C.J. puts the rulethus:-"Although, since the case of Pasley v.Freeman(4) the law has been that the defendant'sadvantage is not a necessary ingredient in anaction, there must be proof of loss on the plaintiff'spart. Lord Kenyon C.J. in his judgment in that case,cites Croke J. 'fraud without damage, or damagewithout fraud, gives no cause of action; but wherethese two do occur, then an action lieth.' Theremust be damnum et injuria; and it seems to me thatan action cannot lie at all without loss to theplaintiffs. In all cases of this kind the rule ofpleading and of law is that the plaintiff must showin the declaration, and prove at the trial, that therepresentation of the defendant was false to hisknowledge, that it was made under circumstanceson which the plaintiff might reasonably act, that theplaintiff acted in consequence of the defendant'sfalse representation, and lastly that the plaintiff hassuffered actual loss."Now, how have the plaintiffs attempted to satisfythat last condition here? They say:-"We bought thestation with stock and improvements for £15,000,and we were deceived by a statement that a certainnumber of the cattle were of certain ages, and ifthose cattle had been of that number and of thoseages we would have been so much to the good; theproperty would have been worth £2,700 more to usthan it actually was." I put this to counsel. Suppose,apart from warranty, the declaration had said thatthe defendants had fraudulently made arepresentation *1717 as to the number of cattle on acertain property and thereby induced the plaintiffsto buy the property for £10,000 whereas theproperty was worth £20,000, but if therepresentation had been true the property wouldhave been worth £30,000, could the plaintiffsCopr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 121907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)succeed? Counsel said, Yes. That is quite foreign tomy notions as to the nature of an action for deceit.It was attempted by the plaintiffs alternatively toshow that there was evidence of the value of theproperty as a whole; that you take the contract andthere you find a price fixed by the parties, and,assuming that to be a fair price for the property,you are then at liberty to say that if therepresentation had been true it would have beenworth much more. But the fallacy of that isobvious. If you look for the price in the contractyou look for the property in the contract, and theproperty in the contract does not include theproperty which is now being sued upon. Therefore,if you say that the property in the contract is sold ata fair price, that ends the matter. But if you wish toprove that the property in the contract was worthmuch less than the price paid, then to establish thedamages sustained you must bring evidence to thateffect. Therefore, it is perfectly consistent with theevidence given by the plaintiffs that they havesuffered no loss, or even that they have made agood bargain. If they have, then they have notaltered their position for the worse, andconsequently have failed to maintain the threeessentials in an action of deceit, namely, lossoccasioned by action which they were induced totake by reason of the defendants' fraud.With regard to the question of evidence I agreewith what has been already said. It seems to methat the section in question was intended to regulatethe rule of law which enables a party, not to bringwhat I may call original evidence in support of hiscase, but evidence breaking down and discreditinga witness called by his opponent. It would be asingular thing if this class of evidence could begiven by the defendant to contradict a witness ofthe plaintiff on the first part of the plaintiffs' case,and should not be open to him when the plaintiffcalls a witness to rebut the case made by thedefendant. The object of such evidence is, not tosupport the party's case, but to break down or*1718 discredit a witness who has given evidenceon the other side. The witness may be askedwhether he did not previously make a statementcontrary to the testimony which he is then giving.The fact that he had done so would not be regardedas evidence for the other side on the issues in thecase, but as tending to break down the evidence ofthe side calling the witness so far as it dependedupon the credibility of the witness. He may beasked whether he had received a bribe to giveevidence. If he had, that would simply break downhis evidence; or he may be asked whether he hadnot been convicted of some offence. These aresome of the recognized means of discrediting awitness. But a proper foundation has to be laid forthe contradiction by a proper cross- examination. Astrong case showing that is Hemming v.Maddick(1). There a witness had made an affidaviton behalf of the plaintiff, and it was sought to putin a statement in writing made by the witness to thedefendant's solicitor which was alleged to beinconsistent with the affidavit. It was held that theonly purpose for which such a document could beused was to discredit the witness who made it, andthat, if it were used for that purpose, the witnessought to have been cross-examined, and then thedocument might have been put in his hand and hemight have been cross-examined upon it. It seemsto me that that being the law the evidence may beused at any stage of the case.For these reasons I agree with the judgmentproposed by the Chief Justice.Appeal allowed with costs. Verdict for theplaintiffs on the first count set aside, and verdictentered for the defendants.Solicitors, for the appellants, J. A. Busby byColquhoun & Bassett.Solicitors, for the respondents, Minter, Simpson &Co.C. A. W.FN(1) 41 Ch. D., 348.FN(2) Sedgwick's Ruling Cases on Measure ofDamages, p. 553.FN(1) 3 Macq. H.L. Cas., 783.FN(2) 17 Ch. D., 301, at p. 312.FN(3) (1903) 1 Ch., 586.FN(4) 4 Q.B.D., 678.FN(5) L.R. 1 C.P., 559.FN(6) 117 U.S., 415.Copr. © West 2004 No Claim to Orig. Govt. Works

4 CLR 1692 Page 131907 WL 12437 (HCA), 14 ALR 89, 7 SR (NSW) 821(Cite as: 4 CLR 1692)FN(2) 41 Ch. D., 348, at p. 370.FN(1) (1903) 1 Ch., 586, at p. 605.FN(2) (1904) A.C., 342.FN(3) 4 Q.B.D., 678.FN(4) 4 Q.B.D., 678, at p. 681.FN(5) 4 Q.B.D., 678, at p. 684.FN(6) 2 C.P.D., 469.FN(7) 3 Macq. H.L. Cas., 783, at p. 798.FN(1) 22 L.J. Ch., 559, at p. 562.FN(1) 117 U.S., 415.FN(2) 117 U.S., 415, at p. 417.FN(1) (1903) 1 Ch., 586.FN(1) L.R. 5 H.L., 561.FN(2) L.R. 5 H.L., 561, at p. 568.FN(1) (1892) 2 Q.B., 534.FN(2) 8 Ex., 725, at p. 731.FN(1) 29 Ch. D., 459, at p. 482.FN(2) 6 C.B. (N.S.), 453.FN(3) 18 L.T.N.S., 293, at p. 295.FN(4) 2 Sm. L.C., 68.FN(1) L.R. 7 Ch., 395.(c) Thomson Legal and Regulatory Limited ABN64 058 914 668END OF DOCUMENTFN(1) 2 Raym. (Ld.), 1118.FN(2) 2 Raym. (Ld.), 1118, at p. 1120.FN(3) 20 Ch. D., 1, at p. 15.FN(4) 6 Cl. & F., 232.FN(5) 20 Ch. D., 1, at p. 16.FN(6) 20 Ch. D., 1, at p. 21.FN(7) 41 Ch. D., 348, at p. 369.FN(1) 20 Ch. D., 27, at p. 44.Copr. © West 2004 No Claim to Orig. Govt. Works