Bahr v Nicolay (No 1) - [1987] HCA 32

HIGH COURT OF AUSTRALIA

Toohey J.

BAHR v. NICOLAY (No. 1)

(1987) 163 CLR 490

29 July 1987

High Court

High Court—Practice and procedure—Appellate jurisdiction—Security for costs—Jurisdiction to grant—Application for special leave to appeal—No abuse of process—Judiciary Act 1903 (Cth),ss. 35, 35A, 77s—High Court Rules, O. 69A, r. 5; O. 70, rr. 7(1), 10.

Decision

TOOHEY J.: By this application the second respondents, Mr. and Mrs. Thompson, seek an order that Mr. and Mrs. Bahr, applicants for special leave to appeal to the High Court, provide security for the costs of their application for special leave.

2. Mr. and Mrs. Bahr are seeking special leave to appeal from part of a judgment of the Full Court of the Supreme Court of Western Australia given on 25 May 1987 which dismissed a claim by them against Mr. and Mrs. Thompson. The application for special leave is pending and is likely to be heard in Melbourne at the end of the August sitting of the Court. Affidavits have been filed in support of and in opposition to the grant of an order for security for costs. At the outset a question arises as to whether such an order is competent. The question arises in this way.

3. Since the amendments to s.35 of the Judiciary Act 1903 (Cth) made by Act No. 12 of 1984, no appeal may be brought from a judgment of the Supreme Court of a State "unless the High Court gives special leave to appeal" (s.35(2)). This requirement is reflected in the High Court Rules, O.69A of which deals with applications for special leave to appeal, and O.70 of which deals with appeals. As will appear later in these reasons, O.70 contains express provision for security for costs; O.69A does not.

4. Before Act No. 12 of 1984, s.35 of the Judiciary Act provided an appeal as of right in certain cases, with a general provision whereby the High Court might grant special leave to appeal in respect of any judgment, final or interlocutory, and whether in a civil or criminal matter.

5. Section 77S of the Judiciary Act finds its place in Pt XB which was inserted by Act No. 138 of 1979, some five years before the amendments to s.35. Section 77S(1) reads:

" The Rules of Court may make provision for and in relation to the giving, in an appeal to the Court, of security for the prosecution of the appeal without delay and for the payment of costs that may be awarded against the appellant."

The sub-section has remained unchanged. The term "appeal" is defined in s.2 as including "an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge".

6. Earlier the High Court Procedure Act 1903 (Cth) had contained provision for security in the case of appeals to the High Court from a judgment of the Supreme Court of a State: ss.35, 36. That Act was repealed…

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.

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Details

Case: [1987] HCA 32
Decision Date: 29 July 1987

CaseChat Overview and Summary

The case of *Bahr v Nicolay (No 1)* concerned a dispute between the registered proprietor of land, Nicolay, and a purchaser, Bahr. Bahr had entered into a contract to purchase land from Nicolay, with a clause in the contract stating that Nicolay would lease the land back to Bahr for a period of three years, after which Bahr would have the option to purchase the land. Nicolay subsequently sold the land to a third party, who was aware of the terms of the original contract with Bahr. Bahr sought to enforce his rights under the contract against Nicolay and the new purchaser.

The central legal issue before the court was whether the new purchaser, having notice of Bahr's contractual rights, was bound by those rights despite not being a party to the original agreement. Specifically, the court had to determine if Bahr's interest in the land, arising from the contract for sale and the subsequent lease-back and option to purchase, constituted an equitable interest that could be enforced against a third-party purchaser who had actual knowledge of this interest.

Toohey J reasoned that the contract created an equitable interest in the land in favour of Bahr. This equitable interest was not extinguished by the subsequent sale to the third party because the purchaser had actual notice of Bahr's rights. The principle applied was that a purchaser of land who has notice of a prior equitable interest takes the land subject to that interest. The court found that the purchaser's knowledge of the contract, including the lease-back and option provisions, meant they could not claim to be a bona fide purchaser for value without notice, and therefore were bound by Bahr's equitable estate.

Orders