Caldwell Brothers v Cobbledick [1912] HCA 38

Caldwell Brothers v Cobbledick [1912] HCA 38

Section 108 does not apply where non-payment is a condition precedent to liability; in such cases, non-payment must be proved by the plaintiff.

Parties
Appellants; Plaintiffs: Caldwell Brothers; Respondent; Defendant: Cobbledick
Jurisdiction
Australia
Judgment Date
04 June 1912
Procedural Posture
Appeal / Application for Special Leave to Appeal From the Supreme Court of South Australia
Outcome
Special leave to appeal refused.
Legal Topics
Pleading Special Defences, Payment, Burden of Proof in Contract Actions
Practice and Procedure Contract Law Pleading Special Defences Payment Burden of Proof in Contract Actions

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Parties

Caldwell Brothers

Appellants; Plaintiffs

Cobbledick

Respondent; Defendant

Procedural Posture

Appeal / Application for Special Leave to Appeal From the Supreme Court of South Australia

Legal Issues

  1. 1 Does section 108 of the Local Courts Act 1886 (S.A.) require the defendant to specially plead payment as a defence in this case?
  2. 2 Who bears the onus of proving non-payment where non-payment is a condition precedent to liability?

Ratio Decidendi

Section 108 does not apply where non-payment is a condition precedent to liability; in such cases, non-payment must be proved by the plaintiff.

Court Disposition

Special leave to appeal refused.