Fitzgerald v F J Leonhardt Pty Ltd

In *Fitzgerald v F J Leonhardt Pty Ltd*, the High Court of Australia considered a dispute between a landowner, Fitzgerald, and a drilling contractor, F J Leonhardt Pty Ltd. The contractor sought payment for drilling bores on the landowner's property, but the landowner refused to pay, alleging the contract was illegal. The core of the dispute concerned whether the drilling was performed in contravention of the *Water Act 1992* (NT) and, if so, the consequences for the enforceability of the contract.

The High Court was required to determine several key legal issues. Firstly, it had to ascertain whether the contract, as formed and performed, was prohibited by the *Water Act 1992* (NT) and its associated regulations. This involved examining the statutory obligations regarding the drilling of bores, specifically whether the responsibility for obtaining the necessary permits rested with the landowner or the drilling contractor. Secondly, the Court had to consider whether, even if not expressly prohibited, the contract was contrary to public policy due to its performance in contravention of the statute.

The Court reasoned that the *Water Act 1992* (NT) imposed a prohibition on the drilling of bores without a permit, but the obligation to obtain such a permit was cast upon the owner of the land, not the contractor. Therefore, the contract itself was not illegal, nor was its performance inherently illegal. The contractor's obligation was to drill the bores, and it was the landowner's responsibility to ensure compliance with the statutory permit requirements. The Court held that where a statute prohibits the doing of an act, but does not expressly state that a contract for the performance of that act is void or illegal, the contract will only be unenforceable if the statute makes it so, or if the performance of the contract necessarily involves the commission of an illegal act by the party seeking to enforce it. In this instance, the contractor did not commit an illegal act by drilling the bores; it was the landowner who failed to fulfil their statutory duty.

Consequently, the High Court found that the contract was not illegal and the contractor was entitled to recover the moneys due under it.