Ferrum Metal Exports Pty Ltd v Lang - [1960] HCA 7

HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar, Kitto, Taylor and Menzies JJ.

FERRUM METAL EXPORTS PTY. LTD. v. LANG

(1960) 105 CLR 647

24 February 1960

Local Government (Vict.)

Local Government (Vict.)—By-laws—User of land—Prohibition by by-law—Repeal of by-law—Effect of repeal—New by-law in similar terms—Operation of amendment to statute—Local Government Act 1946 (Vict. No. 5203), s. 197 (1) (xxxviii) (a), (7)—Local Government Act 1949 (Vict. No. 5443), s. 5.

Decisions

1960, February 24.
The following written judgments were delivered:-
DIXON C.J., TAYLOR AND MENZIES JJ. The appellant company, which was incorporated under the Companies Act 1938 (Vict.) on 1st July 1955, is the successor in business to one Jankiel Klajn who, in July 1948, commenced to carry on the business of scrap metal dealer upon a parcel of land situated at North Carlton. Since that time the business has been carried on continuously at the same place. However, in December 1958 proceedings upon information were taken against the appellant alleging that it had, on and after 5th May 1958, used the land in question for the purposes of the said business in breach of the provisions of by-law No. 375 of the City of Melbourne. It is common ground that the use of the land at the relevant times for these purposes was, in terms, forbidden by cl. 4 of the by-law but it is claimed that consideration of the provisions of sub-s. (7) of s. 197 of the Local Government Act 1946 (Vict.) and of the provisions of earlier by-laws leads to the conclusion that the appellant did not commit any offence by using the land as it did. The arguments now advanced on behalf of the appellant were accepted by the magistrate and he dismissed the information but upon proceedings for review the Supreme Court of Victoria set aside the order of dismissal and remitted the information to him with the direction that unless some ground of defence should be established the appellant should be convicted: Lang v. Ferrum Metal Exports Pty. Ltd. (1960) VR 702 . This appeal is now brought by special leave from the order of the Supreme Court. (at p651)

2. For a proper understanding of the arguments advanced on behalf of the appellant it is necessary to mention that when its predecessor in business first commenced to use the land for the purposes mentioned there was in existence by-law No. 251 which was promulgated in the exercise of authority conferred by the Local Government Act 1928 (Vict.). By this by-law the use of the land for those purposes was forbidden and was punishable as an offence. This by-law came into force on 7th July 1941 and the material provisions continued in operation until 1st January 1949 when they were repealed by by-law No. 289 which was made pursuant to s. 197 (1) (xxxviii) of the Local Government Act 1946. This Act had repealed so much of the Local Government Act 1928 as had not been repealed previously but s. 2 of the…

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: [1960] HCA 7
Decision Date: 24 February 1960

CaseChat Overview and Summary

Ferrum Metal Exports Pty Ltd (the applicant) sought to recover from Lang (the respondent) the sum of £1,000,000, which it alleged was due under a contract for the sale of goods. The applicant claimed that the respondent had breached the contract by failing to pay for goods delivered. The respondent denied the existence of a binding contract and, in the alternative, alleged that the applicant had failed to deliver goods in accordance with the contract. The matter came before the High Court of Australia.

The High Court was required to determine whether a binding contract for the sale of goods had been formed between the parties. In particular, the court had to consider whether the correspondence exchanged between the parties constituted a sufficient offer and acceptance to create legally binding obligations, and whether the terms of any such agreement were sufficiently certain to be enforceable.

The court found that the correspondence did not establish a concluded agreement. It held that the respondent's communications did not amount to an unqualified acceptance of the applicant's offer, but rather constituted a counter-offer. As there was no acceptance of this counter-offer, no binding contract came into existence. The legal principle applied was that a contract is formed when there is a clear offer and an unqualified acceptance of that offer, with sufficiently certain terms.

The High Court therefore held that the applicant had failed to establish the existence of a contract and dismissed the applicant's claim.

Orders