Dixson Trust Limited v Beard Watson Limited

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning an action brought by Beard Watson Limited against Dixson Trust Limited for alleged breaches of covenant in a deed. The dispute arose from alterations made to leased premises, which allegedly resulted in the collapse of an upper storey and consequent damage to the plaintiffs' goods and business. The declaration set out the plaintiffs' construction of the covenants, while the defendants' second plea alleged an implied condition within the deed regarding the architect's sole control over the alterations and the necessary support works.

The legal issues before the High Court included the construction of the covenants as pleaded by the plaintiffs, and the validity of the defendants' plea alleging an implied condition. Crucially, neither the deed itself nor the specific language of the covenant or the alleged condition was before the court. The Supreme Court had previously allowed a demurrer to the defendants' plea.

The High Court reasoned that determining the demurrer without the actual language of the deed would be unsatisfactory and potentially futile, as it would involve construing the pleader's language rather than the operative instrument. The court considered that the real controversy depended on the actual wording of the deed. Therefore, the High Court decided to postpone the hearing of the demurrer until after the issues of fact had been tried, allowing parties the liberty to amend their pleadings.

The High Court discharged the order of the Supreme Court that allowed the demurrer to the second plea and ordered that the hearing of the demurrer be postponed until after the trial of the issues of fact. The costs of the demurrer were to abide the event of the issue of law, and by consent, the costs of the appeal were to abide the event of the action.