Local Government (N.S.W.)—Proclamation declaring residential district—Prohibition of erection of building for use for purposes of any trade—Private convalescent hospital—Whether "trade"—"Business" and "trade"—Local Government Act, 1919 (N.S.W.), as amended, s. 309 (1) (c).

Decisions

February 25
The following written judgments were delivered : -
BARWICK C.J. The relevant parts of a trust deed by which assets of Australian Factors (Queensland) Pty. Ltd. were charged to secure moneys provided by stockholders and the facts which have given rise to this litigation are fully set out in the reasons for judgment prepared by my brother Menzies which I have had the advantage of reading. The question is whether two sums of money, the proceeds of debts due to the company, which have come to the hands of the receiver and manager of the company in Queensland are assets of the company in Queensland charged with the payment of money to the stockholders. (at p603)

2. The charge was a floating charge which became a fixed charge before these moneys came to hand in Queensland. The appellant's submission has been that the charge was limited to those assets which before it became a fixed charge were in Queensland and employed by the company in its business activities in that State. (at p603)

3. The question, however, which the litigation raises must be answered by construction of the language of the trust deed by which the charge was created. It is the description of the property charged, rather than the nature of the charge created, which will supply the answer. After consideration I have come to the conclusion that the sums of money in question do fall within the description of the property charged. That description included present and future assets of whatsoever kind in the State of Queensland. The only limitation on the generality of that description was the location of the asset. That description, in my opinion, was just as applicable and operative when the charge became a fixed charge as it was when the charge remained a floating charge. The language of the description cannot be construed in my opinion as limited to those assets in Queensland which were at any time subject to the floating charge. Upon the charge becoming a fixed charge it spoke for the future according to its terms. Thus after-acquired property became charged as it came into existence in Queensland, or came within Queensland. It cannot matter, in my opinion, whence such property was derived. The description merely requires it to be an asset of the company situate in Queensland. (at p603)

4. I therefore agree with the conclusions which my brother Menzies has reached and I agree generally with the reasons he gives. However, while I agree that much 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.

Continue reading Hornsby Shire Council v Salmar Holdings Pty Ltd

Details

AGLC: Hornsby Shire Council v Salmar Holdings Pty Ltd [1972] HCA 26
Case: [1972] HCA 26
Decision Date: 14 April 1972

CaseChat Overview and Summary

Hornsby Shire Council (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had granted a declaration and injunction in favour of Salmar Holdings Pty Ltd (the respondent). The dispute concerned the validity of a development application made by Salmar Holdings for the erection of a motel and restaurant on land within the Hornsby Shire. The Council had refused to grant development consent, and Salmar Holdings had subsequently sought judicial review of that refusal.

The primary legal issue before the High Court was whether the Council's refusal to grant development consent was invalid due to a failure to comply with the procedural requirements of the relevant planning legislation, specifically the Local Government Act 1919 (NSW) and the County of Cumberland Planning Scheme Ordinance. The core of the dispute revolved around whether the Council had properly considered the development application in accordance with its statutory obligations, particularly in relation to the provision of information and the opportunity for public representation.

The High Court, in allowing the appeal, found that the Council had not acted unlawfully in refusing the development application. The Court held that the Council was not obliged to grant consent to a development application that did not comply with the requirements of the planning scheme. Furthermore, the Court determined that the Council had provided Salmar Holdings with sufficient notice of the reasons for its refusal and that the procedural requirements of the legislation had been met. The principles applied centred on the proper interpretation of statutory duties in the context of development control and the limited scope for judicial intervention where a decision-making body has acted within its powers.

The High Court ordered that the declaration and injunction granted by the Supreme Court of New South Wales be set aside, and that the appeal be allowed.

Orders