Adelaide Development Company Pty Ltd v Pohlner - [1933] HCA 13

ADELAIDE DEVELOPMENT COMPANY

PROPRIETARY LIMITED POHLNER

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Sale of and-Contract-Illegality-Subdivision-PlanApproval by town planner

-Deposit of plan-Condition precedent to sale of land-Failure to deposit- Illegality of sale-Plan deemed to have been deposited on receipt of letter of approval from town planner-Different plan approved from that subsequently deposited- MELBOURNE, Non-compliance with statutory requirements-Town Planning and Development March 16, 17. Act 1920 (S.A.) (No. 1452), secs. 32, 35-Town Planning Act 1929 (S.A.) (No. 1945), sec. 22.

The appellant brought an action against the respondent for damages for breach of a contract for the purchase of certain lots of land on a plan of sub- division in South Australia. The defendant pleaded illegality, relying on the appellant's failure to comply with the requirements of sec. 23 (c) of the Town

49 CLR 26

Planning and Development Act 1920 (S.A.), which makes it unlawful to sell or offer for sale any existing allotment otherwise than in accordance with the provisions of that Act. In this case a plan of subdivision was prepared, but the town planner re-arranged the design, and a further plan (Exhibit A6) was prepared, in respect of which a certificate in Letter Form A was given. Yet another plan (Exhibit A7) was prepared, founded upon and closely resembling Exhibit A6 but varying from it in some particulars, notably in reference to the situation and dimensions of some of the allotments. No new Letter Form A was issued in respect of this plan, but it was approved, and a certificate of approval was issued on 5th May 1927, and this plan was deposited on 18th July 1927, the contract of sale having previously been entered into on 27th June 1927.

Held, by Rich, Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), (1) that the provisions of the Town Planning and Development Act 1920 had not been complied with as the contract was entered into before the plan was deposited (2) that the appellant could not rely upon sec. 22 (c) of the Town Planning Act 1929 (S.A.), which provided that "in any case where plan of subdivision was subsequently deposited in the Lands Titles Registration

the said plan shall be deemed deposited at the time when the said letter in the Letter Form A was received by the applicant," because the Letter Form A, although received before the date of the contract, related not to the plan Exhibit A7 subsequently deposited, but to a different plan, namely, Exhibit A6 and (3) that the sale was not in accordance with the provisions of the Act and was illegal and void.

George v. Greater Adelaide Land Development Co., (1929) 43 C.L.R. 91, applied. Decision of the Supreme Court of South Australia (Napier J.) Pohlner V. Adelaide Development Co. Ltd., (1932) S.A.S.R. 346, affirmed.

APPEAL from the Supreme Court of South Australia.

The appellant, Adelaide Development Co. Pty. Ltd., brought an action in the Local Court of Adelaide against the respondent, August Frederick Wilhelm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adelaide Development Company Pty Ltd v Pohlner

Details

AGLC: Adelaide Development Company Pty Ltd v Pohlner [1933] HCA 13
Case: [1933] HCA 13
Decision Date: 21 April 1933

CaseChat Overview and Summary

Adelaide Development Company Pty Ltd (the appellant) appealed to the High Court of Australia from a decision of the Supreme Court of South Australia. The appellant sought damages for breach of a contract for the sale of land, but the respondent (the purchaser) pleaded illegality. The core of the dispute concerned whether the contract was void due to non-compliance with the provisions of the *Town Planning and Development Act 1920* (S.A.) and the *Town Planning Act 1929* (S.A.).

The legal issues before the High Court were whether the contract of sale was illegal and void because it was entered into before the plan of subdivision was deposited in accordance with the *Town Planning and Development Act 1920*, and if so, whether section 22 of the *Town Planning Act 1929* operated retrospectively to validate the contract. Specifically, the court had to determine if the requirements of section 22 of the 1929 Act were met, particularly concerning the identity of the plan approved by "Letter Form A" and the plan subsequently deposited.

A majority of the High Court (Rich, Dixon, Evatt, and McTiernan JJ.) held that the provisions of the *Town Planning and Development Act 1920* had not been complied with, as the contract was entered into before the plan of subdivision was deposited. They further found that the appellant could not rely on section 22 of the *Town Planning Act 1929* because the "Letter Form A" approval related to a different plan (Exhibit A6) than the one ultimately deposited (Exhibit A7). The court reasoned that section 22 required the "said plan" to be the same plan that received approval in "Letter Form A," and that the variations between Exhibit A6 and Exhibit A7 were substantial and material, meaning they were not substantially identical. Consequently, the sale was deemed illegal and void. Starke J. dissented, finding that the approval and subsequent letter of 5th May 1927, in conjunction with the deposited plan, satisfied the validating provisions of section 22. The appeal was dismissed.

Orders