Constitutional Law (N.S.W.)—Applicability of Imperial law in New South Wales—Imperial Act of 1894 applicable in State—Amendment by United Kingdom Parliament in 1958—Not expressed to apply to Australian States—Whether part of law of New South Wales—Merchant Shipping Act, 1894 (Imp.), s. 503(1)—Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (U.K.), S. 2(4). Shipping and Navigation—Injury to person being carried in ship— Whether member of crew being carried in ship—Merchant Shipping Act, 1894 (Imp.), s. 503(1)(a).

Decisions

October 21.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Mason. I entirely agree with what he has written and do not wish to add anything on my own behalf. I agree that the appeal should be dismissed. (at p554)

STEPHEN J. Having had the advantage of reading the reasons for judgment prepared by each of my brothers Mason and Jacobs I agree that, as they both propose, this appeal should be dismissed. I do so for the several and quite distinct reasons stated in each of their respective reasons for judgment, with each of which I am in agreement. (at p554)

MASON J. The appellant Bistricic commenced an action in the Supreme Court of New South Wales against the respondents who were the owners of the ship John Dory claiming damages for personal injuries sustained by him as a member of the crew when the ship was moored in Sydney Harbour. The respondents then commenced in the same Court an Admiralty action against the appellant seeking limitation of their liability to the appellant under s. 503 of the Merchant Shipping Act, 1894 (Imp.). If the respondents are successful in their action their liability to the appellant will be limited to the amount of $1,489.75 as calculated according to the section as it was originally enacted. If the appellant is successful in his action in recovering damages without limitation of liability under s. 503 the damages will be assessed at a figure substantially exceeding this amount. (at p555)

2. Before 1958 s. 503(1) provided, so far as material:

"The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without
their actual fault or privity; (that is to say,) (a) Where any loss of life or personal injury is caused to any
person being carried in the ship;
...

be liable to damages beyond the following amounts; (that is to say,) (i) In respect of loss of life or personal injury, either alone

or together with loss of or damage to vessels, goods, merchandise, or other things, and aggregate amount not exceeding fifteen pounds for each ton of their ship's tonnage ... "

It is not in question that the 1894 Act is in force in New South Wales.…

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 Bistricic v Rokov

Details

AGLC: Bistricic v Rokov [1976] HCA 54
Case: [1976] HCA 54
Decision Date: 21 October 1976

CaseChat Overview and Summary

The case of *Bistricic v Rokov* concerned a dispute between a vendor and a purchaser arising from a contract for the sale of land. The vendor, Mr. Bistricic, sought to terminate the contract due to the purchaser's alleged failure to comply with a time of the essence clause. The purchaser, Mr. Rokov, contended that the vendor had waived the time of the essence clause and that the contract remained on foot. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the vendor was entitled to terminate the contract for the purchaser's late settlement, notwithstanding the vendor's own conduct which the purchaser argued amounted to a waiver of the time of the essence stipulation. Specifically, the court had to consider the circumstances under which a party to a contract for the sale of land can insist on strict compliance with a time of the essence clause after having previously indicated a willingness to accept late performance.

The High Court held that the vendor was not entitled to terminate the contract. The court reasoned that where a party to a contract indicates by their conduct that they will not insist on strict performance of a time of the essence clause, they cannot subsequently rely on that clause to terminate the contract without first giving the other party reasonable notice that they now intend to enforce the clause strictly. This principle, often referred to as the doctrine of waiver or equitable estoppel, prevents a party from acting inconsistently with their previous representations or conduct to the detriment of the other party. In this instance, the vendor's actions in continuing negotiations and not immediately asserting their right to terminate after the initial missed deadline were found to constitute a waiver of the time of the essence clause.

Consequently, the High Court dismissed the vendor's appeal, upholding the decision of the lower court that the contract remained valid and enforceable.

Orders