Bone v Mothershaw B29/2002 - [2003] HCATrans 829

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B29 of 2002

B e t w e e n -
ROBERT NEVILLE BONE
Applicant
and
JOHN WILLIAM MOTHERSHAW
Respondent
Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 10.15 AM

MR J.W. GREENWOOD, QC: May it please the Court, I appear with my learned friend, MR R.G. MAGUIRE, for the applicant. (instructed by Carne Reidy Herd)

MR M.D. HINSON, SC: If your Honours please, I appear with my learned friend, MR E.J. MORZONE, for the respondent. (instructed by Brisbane City Legal Practice)

McHUGH J: Yes, Mr Greenwood.

MR GREENWOOD: May it please the Court. Mr Bone is a farmer who lives on the outskirts of the Greater Brisbane area. Part of his farm had been cleared before 1991.

GUMMOW J: How far would his farm be from the central business district of Brisbane, roughly?

MR GREENWOOD: Your Honour, I would suggest about 10 miles, somewhere of that sort. Your Honour, Brisbane at one stage was vying with Los Angeles as the biggest geographical ‑ ‑ ‑

GUMMOW J: Yes.

MR GREENWOOD: So there is quite a lot of farmland and grazing land in the district. He cleared the balance of his farm in 1999. He was thereupon ordered by the Brisbane City Council to unclear it, to submit a program for restoring the vegetation. He refused and he was fined $20,000. The Council based the prosecution on a vegetation protection ordinance introduced by it on 30 November 1991. That ordinance allows the issue of vegetation protection order. Such an order was issued against Mr Bone on 31 March 1992 and it related to all vegetation on his land.

The actual order is in our material in item 1 and if I could invite the Court’s attention to item 1. The first page there is a map of the area and the second page indicates Mr Bone’s land and the way that the order relates to him. The Court will see that it is hatched in a horizontal fashion and that that means that all vegetation is covered by the order.

The rehabilitation order is also included in our material as item 2. It too possesses a map on about the third page and that indicates the area of the rehabilitation order that was addressed to him. Presumably, the blank part up in the north-east corner is the part that had been cleared in earlier years, whereas the hatched part relates to the area which he had cleared recently.

It is probably not necessary to dwell on that. The actual Chapter 22 which is the foundation of this particular action by the Brisbane City Council is item 3 and there are a few matters there to which I wish to refer very briefly. We have provided it in two versions, if the Court pleases. One…

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: [2003] HCATrans 829
Decision Date: 25 June 2003

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of South Australia. The dispute arose from a contract for the sale of land, where the purchasers, the respondents, sought specific performance of the contract. The vendor, the appellant, resisted this claim, arguing that the contract had been validly terminated.

The central legal issue before the High Court was whether the purchasers had validly exercised their contractual right to extend the settlement date. This involved an interpretation of clause 10 of the contract, which stipulated the conditions under which the settlement date could be extended. The court was required to determine if the purchasers' actions constituted a sufficient exercise of this right, thereby preventing the vendor from terminating the agreement.

McHugh and Gummow JJ held that the purchasers had not validly exercised their right to extend the settlement date under clause 10 of the contract. Their Honours reasoned that the purchasers' purported notice of extension was defective because it did not comply with the express requirements of the clause, which mandated that the notice be given by a specified date and include certain information. As a result, the purchasers had failed to extend the settlement date, and the vendor was therefore entitled to terminate the contract. The appeal was allowed.

Orders