R v The Bullfinch Prop ((WA)) Ltd
15 CLR 44318 ALR 567
(Decision by: Barton J.)
R
v The Bullfinch Prop ((WA)) Ltd
Judges:
Griffith CJ
Barton JHiggins JJ
Judgment date: 29 October 1912
Decision by:
Barton J.
I agree with the judgment of my learned brother the Chief Justice, and shall add but little. Clause 3 of the agreement provides that the consideration for the sale shall be the sum of £400,000. The transfer merely repeats this statement, but it does not show, as cl 3 goes on to show, how the sum is made up. That is the entire difference in the statement of the consideration. The appellant says that the transfer does not state the consideration truly. But is it any the less true that the consideration is £400,000, if we read into the transfer the terms of cl 3 of the agreement? The "consideration for the sale" is the price boná fide agreed on in the bargain, and we find the bargain in the agreement. The Company are to give £300,000 of the £400,000 by the allotment of 300,000 shares at para, which both parties estimated as the value at that time. Assuming that a vendor's share was worth as much as a subscribed share, it may be a material fact for some purposes that the value has gone up or down before the execution of the document giving the leases over, called a transfer. But for the present purpose it is not material, because the question is -- What was the sum agreed to be given for the mine? The sum was £400,000, made up as described in cl 3. Clause 8 makes it more apparent that the value of the vendor's shares in the Company was boná fide believed not to be greater than £1, for that clause evidently assesses subscribed shares at that value, and it is not pretended that vendors' shares were at any time worth more than subscribed shares. The Company stipulated that the vendors should give that price for 100,000 subscribed shares, and they gave it; and their value as then ascertained became the maximum value boná fide attributed to vendors' shares. Thus the maximum value attributed to 300,000 vendors' shares is £300,000, and that, with £100,000 cash, is the amount of the "consideration for the sale." Certainly it cannot be said that the agreed consideration amounted to any greater sum.
In my opinion, that is enough to dispose of the case. But a short reference may be made to the evidence which was taken in England. It is at the outset clear that the agreed price of 20s. was primá facie the value of each of the 300,000 vendors' shares at the time of transfer. Upon the commission in England, the Crown essayed to show that the value was higher, but it failed to do so by the evidence as to the sales of the subscribed or marketable shares, because the vendors' shares were subject to a clog by the rules of the Stock Exchange. They were not saleable in the market, and do not appear to have acquired any definite substantial value otherwise. In fact, no sale of any of the latter class of shares at even as high a price as £1 was shown to have taken place at any material time. The primá facie value of 20s. was therefore not affected. When the restriction on their sale in the market was removed, they were at a much lower figure than £1.
For the reasons which I have given, I am of opinion that this appeal should be dismissed.