Barringer v Nyngan Corporation - [1953] HCA 4

86 CLR 495

of the article. Again, it was argued that there were other articles, and in particular those imposing restrictions upon the sale and transfer of shares, which were repugnant to the local Stock Exchange requirements and which also tended to depress the value of the deceased's shares, and that the existence of these articles justified the application of the section. But I should point out that it is quite clear from the terms of par. 36 of the admitted facts, that the operation or notional exclusion of article 6 is the only factor material to this branch of the case. No doubt the existence of articles which operate to depress the value of shares in a company, and, perhaps, the existence of articles which, in some respects, determine the character of shares, will form an appropriate basis for the application of S. 16A 1 (a) (see the observations of Williams J. in Federal Commissioner of Taxation v. Sagar (1) ), but such a basis having been found and the section having been applied, the only warrant for excluding or ignoring particular articles is that such a course is necessary in order to assume a form of articles which will satisfy Stock Exchange requirements and render the shares "listable". Accordingly, even if it was proper to apply S. 16A in the present case, the question is whether article 6 was repugnant to such requirements "at" or upon " the death of the testator. The clear evidence is that the existence of the article at that time no longer precluded the company's listing at the appropriate stock exchange. This being so, I am of the opinion that the assumption which S. 16A requires to be made does not require or authorize the exclusion of article 6 in making a valuation of the shares held by the deceased at the time of his death and, for the reasons which I have given, I think the com- missioner was wrong in ignoring or excluding the provisions of article 6 in assessing the value of the deceased's shares for the purposes of the Act.

The second branch of the appeal is concerned with S. 8 (4) (e) of the Act which provides that for the purposes of the Act the estate of a deceased person comprises property being a beneficial interest in property which the deceased had at the time of his decease, which beneficial interest, by virtue of a settlement or agreement made by him, passed or accrued on or after his decease to, or devolved on and after his death upon, any other person.

The submissions which were made on this branch of the appeal conceded that article 6 operated at the moment of the death of the deceased and that the exclusion of the provisions of that article by the application of S. 16A (1) (a) was not legally permissible.

1(1946) 71 C.L.R. 421.

86 CLR 496

On this view it was said the article was testamentary in operation…

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: [1953] HCA 4
Decision Date: 5 March 1953

CaseChat Overview and Summary

The case of *Barringer v Nyngan Corporation* involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Mr. Barringer, sought to challenge an order issued by the Nyngan Corporation, purporting to act under section 317B of the *Local Government Act 1919-1951* (NSW), which directed him to demolish a building he owned. Mr. Barringer contended that the order was invalid, arguing that the relevant section of the Act did not empower the council to issue an absolute demolition order, but rather required that an alternative be offered to the owner, such as re-erecting the building or repairing it to the council's satisfaction.

The central legal issue before the High Court was the proper construction of section 317B of the *Local Government Act*. Specifically, the court had to determine whether the provision permitted a council to issue an order solely for the demolition of a dilapidated or unsightly building, or if it mandated that an alternative course of action, such as re-erection or repair, must be offered to the building owner. This involved interpreting the phrase "to demolish, or as an alternative, to re-erect such building or any part thereof or otherwise to put the same or any part thereof into a state of repair and good condition to the satisfaction of the council within a reasonable time to be fixed by the order."

The High Court, in allowing the appeal, reasoned that the wording of section 317B, particularly when read in conjunction with its subsequent subsections dealing with the execution of demolition orders and the council's expenses, indicated that a council could indeed issue an order for demolition simpliciter. The court found that the structure of the section, including the provisions for the council to execute demolition and recover costs, supported the interpretation that demolition was a primary and permissible outcome, without necessarily requiring the offer of an alternative. The court noted that while the section outlined various potential actions, the council's power to order demolition was distinct and did not depend on the availability or inclusion of alternatives.

Consequently, the High Court allowed the appeal, setting aside the decree of the Supreme Court. The court declared the demolition order to be valid and operative, and the appellant's suit seeking to restrain the council from executing the order was dismissed.

Orders