Appeal—Exercise of discretion by appellate court—Ground of appeal added by amendment—Allegation of technical invalidity—Effect of seeking new trial on different issue—Interests of justice—Limited public interest—Supreme Court Act 1970 (N.S.W.),s. 75A(6).
Decisions
GIBBS C.J., WILSON, BRENNAN AND DAWSON JJ.: This is an appeal from an interlocutory judgment of the Court of Appeal of the Supreme Court of New South Wales allowing an issue to be raised for the first time on the hearing of an appeal and further evidence to be received.
2. In the New South Wales Government Gazette No. 101 of 30 July 1982, a Notice under the Water Act 1912 (N.S.W.), as amended, ("the Act") was published. So far as material, the Notice read:
"NOTICE is hereby given that as the Water Resources Commission is satisfied that each water source listed in the Schedule hereto is unlikely to have more water available than is sufficient to meet the water allocations of holders of existing licenses, group licenses and authorities and the requirements of all other users lawfully authorized to take water from each said water source the Commission pursuant to section 20Y(1) of the Water Act, 1912, hereby declares that on and from the thirtieth day of July, 1982, and except as provided in section 20Y(2) no further applications for licenses, group licenses and authorities ... will be granted on or pertaining to each said water source until the revocation of this notice is published".
Among the water sources listed in the Schedule was one described as the "Severn River, from the upper limit of Pindari Dam storage downstream to Macintyre River". We will refer to this water source as "the Severn River Source".
3. Both the appellants and the first respondents are landholders in the Northern Rivers District of New South Wales in the vicinity of the Severn River. The first respondents are members of the Whalan Creek Water Users' Association, drawing water from Whalan Creek. In August 1979 they applied to the Water Resources Commission ("the Commission") for a licence under s.10 of the Act permitting the diversion of water from the Macintyre River to augment the supply of water in Whalan Creek. On 4 February 1983 they made another application dated 26 January 1983, purportedly under s.20 of the Act, for an authority for a joint water supply scheme. This later application was processed by the Commission as an amendment to the original application of August 1979. It was advertised, objections were received from a number of persons including the appellants, and in due course the Local Land Board for the Land District of Warialda commenced a public inquiry into the application. The inquiry was later adjourned pending the outcome of proceedings instituted in the Supreme Court by the appellants. In those proceedings, the appellants sought relief, inter alia, as follows:
1. A declaration that the application dated 26 January 1983…
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 Coulton v Holcombe
Sign in free to access the full text
Details
AGLC
Coulton v Holcombe [1986] HCA 33
Case
[1986] HCA 33
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Coulton v Holcombe*. The dispute concerned the interpretation of a clause in a contract for the sale of land, specifically whether a condition precedent had been satisfied. The purchasers sought to terminate the contract, alleging the vendor had failed to fulfil the condition.
The central legal issue before the High Court was whether the vendor had taken all reasonable steps to obtain the necessary consent for a subdivision of the land, as stipulated in the contract. This required the court to determine the objective standard of "reasonable steps" in the context of contractual obligations and the specific circumstances of the case.
The Court held that the vendor had not taken all reasonable steps. Gibbs C.J. and Wilson J. found that the vendor's actions were insufficient to satisfy the contractual obligation, emphasizing that "reasonable steps" required more than mere passive waiting or perfunctory efforts. Brennan J. agreed, noting that the vendor had not demonstrated a genuine or diligent pursuit of the consent. Deane and Dawson JJ. also concluded that the vendor's conduct fell short of the required standard. The High Court therefore dismissed the appeal, upholding the purchasers' right to terminate the contract.