Handbury v Nolan

(1977) 13 ALR 339

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(Judgment by: Barwick CJ, Gibbs, Stephen, Jacobs, Aickin JJ) Court:

Judges:
Barwick CJ
Gibbs
Stephen
Jacobs
Aickin JJ

Subject References:
Appeal
Contract
Terms
Partly oral
Partly written
Meaning of
Question of fact
Trial judge
Determination in light of circumstances of case
Whether meaning open to trial judge
Auction
Cattle
Description
Cattle "to be pregnancy tested prior to sale"
Oral statement
Auctioneer
Result of pregnancy test positive
Whether term that cow pregnant at time of sale
Partly in writing
Construction
Question of fact for jury
Cattle auction
Positive pregnancy test

Hearing date: 24, 25 February 1977 -- Melbourne
Judgment date: 15 March 1977

Sydney

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Judgment by:
Barwick CJ
Gibbs
Stephen
Jacobs
Aickin JJ

At an auction sale of Murray Grey breeder's cattle a cow was described in the sale catalogue with the entry, inter alia , "to be pregnancy tested prior to the sale". In the conditions of sale, cl 4 provided:--

4. As all lots are available for inspection prior to commencement of the sale the stock are to be sold with all faults if any and all conditions and warranties which might but for this clause be implied by law are hereby expressly negatived. The auctioneers are not liable in respect of any error, mis-description or omission in any particulars appearing or stated regarding the description or pedigree of any stock offered for sale, and no such error, mis-description or omission shall entitle the buyer to annul the sale, or reject the stock or claim any compensation, damage or abatement in price.

Following the conditions, there was what was described as an " IMPORTANT NOTICE TO BUYERS ". Paragraphs 6 and 7 of this notice provided as follows:--

6. A condition of entry is that all cattle are to be T.B. tested within 21 days prior to sale and vendors should have certificates to this effect available at the sale.

7. Vendors have been recommended to pregnancy test sale females where applicable and results not already shown in the catalogue will be announced at the sale.

At the sale the auctioneer did not read the veterinary surgeon's certificate to the vendor that the cow was pregnant on the day of testing but announced orally that the result of the pregnancy test was positive. After the sale the cow was pregnancy tested on two occasions with a positive result, but on the insistence of the purchaser was re-examined and declared not to be in calf and to be sterile. The purchasers sued the seller, a breeder of Murray Greys, claiming damages for greach of contract.

Judge Hewitt, in the Victorian County Court, found that the cow had not been in calf and that it was a term of the sale that the cow was in fact pregnant at the time of the sale. The Full Court of the Supreme Court of Victoria found that the terms of the contract were confined to the fact that a test had been done and the result positive. The purchasers appealed to the High Court of Australia.

Held, per Barwick CJ and Jacobs J, with whose judgments Aickin J agreed (Stephen J, with whom Gibbs J agreed, dissenting): That taking into account all of the circumstances, while none was definitive, all of them in combination supported the conclusion that the purchaser bought and the seller sold a cow in calf and not merely the chance that she was pregnant. It was open to the primary judge so to find and he was correct in so finding. Accordingly, the appeal should be allowed.

Per Barwick CJ: The matter was not to be resolved from the construction of written documents but as a matter of fact, ie, what in substance was the subject matter of the sale and purchase.

Per Jacobs J: The meaning which the parties to the contract intended by the oral statement at the auction that the pregnancy test was positive was a question of fact for the trial judge, to be determined in the light of all the circumstances of the case.

Deane v City Bank of Sydney (1905) 2 CLR 198 , applied

Per Stephen J: A court is not free to give to the words of the parties' bargain any meaning other than that which they are capable of bearing in ordinary common usage. In this case that meaning was, and was only, that a pregnancy test showing positive results had been performed. Therefore what was sold was not a cow in calf but a cow which had been pregnancy tested with a positive result.

Deane v City Bank of Sydney (1905) 2 CLR 198 , distinguished

Appeal

This was an appeal to the High Court of Australia from the decision of the Full Court of the Supreme Court of Victoria which set aside the decision of the trial judge. The facts appear from the judgment of the Chief Justice, which follows.

S P Charles QC and K M Hayne , for the appellants.

R Merkel , for the respondent.

Cur Adv Vult