Besier v Foster - [1952] HCA 14

94 CLR 526

The policy upon which S. 122 and S. 122A proceed supplies no sufficient reason for giving any wider meaning to the words " mining operations" and "mining property". No doubt the policy is in part founded in the propriety of allowing a deduction for a propor- tioned part of expenditure upon a wasting asset. And it may be conceded that much of the plant in a quarry is of this kind. But, as the Assessment Act shows at a number of points, the policy of the legislature has always been to make special concessions to mining as a means of winning precious metals and valuable minerals from the soil: see SS. 23 (m), 23A, 44 2 (c) and (d), 3 and (4), and 78 1 (b). One may be sure that it is this policy which led to the making of a special provision to deal in the case of mining with what after all is a problem in functional obsolescence or depreciation of general occurrence in terminating undertakings and wasting

In Deputy Federal Commissioner of Taxation (Q.) v. Stronach (1), the Court applied, in effect, the foregoing interpretation to the words " operations carried on in Australia in mining" which occurred in the Sales Tax Assessment Act. In that case reasons were given for distinguishing the decision in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation (2). The same distinction applies to the present case, but we feel bound to say that we find ourselves unable to concur in much that is contained in the judgment of Isaacs and Rich JJ. in the case of the Australian Slate Quarries (3).

In our opinion the appeal should be dismissed.

Appeal dismissed with costs. Solicitors for the appellant, Parish, Patience &McIntyre. Solicitor for the respondent, H. E. Renfree, Crown Solicitor for the Commonwealth.

2(1923) 33 C.L.R. 416. 3(1923) 33 C.L.R., at pp. 419-421. 1(1936) 55 C.L.R. 305.

94 CLR 527

[ ] BESIER FOSTER

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Contract-Specific performance-Sale of land for fixed sum or such other sum as

might be approved by Commonwealth authority under Commonwealth regulations -Application to Commonwealth authority-Cessation of regulations before MELBOURNE,

decision-Provision by State Act for dealing with applications pending before Mar. 14, 17.

Commonwealth authority-Whether decision by State authority a fulfillment of contractual term.

An agreement dated 9th August 1948, for the sale of land in Tasmania provided that the purchase money should be as follows: for the purchase of the land the sum of £26,500 or such sum as may be approved by the delegate of the Treasurer under the National Security (Economic Organization) Regula- tions whichever is the lesser. On 20th September 1948, land sales in Tasmania ceased to be controlled by the Commonwealth regulations. On the same day the Land Sales Control Act 1948 (Tas.) came into operation. By S. 5 (5) it provided that, where before the date of commencement of the Act an applica- tion for consent…

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 Besier v Foster

Details

AGLC: Besier v Foster [1952] HCA 14
Case: [1952] HCA 14
Decision Date: 17 March 1952

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of Tasmania regarding a claim for specific performance of a contract for the sale of land. The parties were Emma Phillipina Besier (the appellant vendor) and Francis Oliver Foster (the respondent purchaser). The dispute arose from a contractual term stipulating that the purchase price for the land would be £26,500 or such lesser sum as might be approved by the delegate of the Treasurer under the National Security (Economic Organization) Regulations.

The High Court was required to determine whether a consent to a sale at a lower price, obtained from a delegate of the Tasmanian Minister for Lands under the Land Sales Control Act 1948 (Tas.), satisfied the contractual requirement for approval by the delegate of the Treasurer under the Commonwealth's National Security (Economic Organization) Regulations. This involved considering the effect of the cessation of the Commonwealth regulations and the commencement of the Tasmanian Act, and whether the contractual wording was sufficiently flexible to encompass the State authority's approval.

The Court reasoned that the contractual clause specifically identified the "delegate of the Treasurer under the National Security (Economic Organization) Regulations" as the approving authority for a reduced purchase price. The Court found that no consent was given for the higher sum of £26,500, and the condition for a sale at a lower sum was not fulfilled because the approval was obtained from a State authority, not the specified Commonwealth delegate. The Court rejected the argument that the clause was intended to refer to the legal authority for the time being exercising land sales control, finding the wording to be definite and referring specifically to the authority established by the Commonwealth regulations.

The appeal was allowed, and the decision of the Supreme Court of Tasmania was reversed. The purchaser's action for specific performance failed on the ground that the contractual condition for a reduced price had not been met.

Orders