Howarth v McMahon

The case of *Howarth v McMahon* involved an appeal to the High Court of Australia from the Supreme Court of New South Wales. The appellants, trustees of a sub-branch of the Returned Sailors, Soldiers and Airmen's Imperial League of Australia, sought to restrain the respondent from maintaining a trespass on land they claimed to own. The appellants asserted title through a conveyance from the Council of the Municipality of Redfern, which had purportedly acquired the land via resumption under the *Local Government Act 1919-1948* (NSW) and the *Public Works Act 1912* (NSW). The stated purpose of the resumption in the Government Gazette notification was "providing a club for returned sailors and soldiers."

The central legal issues before the High Court were whether the purported resumption of the land by the council was valid, and consequently, whether the subsequent conveyance of the land by the council to the appellants was effective. Specifically, the court had to determine if the council possessed the statutory power to resume the land for the stated purpose, and if the notification of resumption satisfied the requirements of the relevant legislation. The respondent contended that the resumption was invalid because the council lacked the power to resume land for the purpose of providing a club, and that the council's subsequent sale of the land to the appellants was also beyond its powers.

The High Court affirmed the decision of the Supreme Court, holding that the purported resumption was invalid. The court reasoned that the power granted to councils under section 358(1)(f) of the *Local Government Act 1919-1948* to "provide, control, and manage" associations, institutes, and clubs for returned sailors and soldiers was intended to enable councils to establish and maintain such facilities under their authority for the general advantage of the community. Crucially, the court found that on the evidence, the council never intended to build or provide a club over which it would exercise control and management. Instead, the council's intention was to acquire the land for the sole purpose of selling it to the ex-servicemen's organisation. This intention was found to be outside the contemplation of the statutory power, rendering the resumption ultra vires and void.

Consequently, as the resumption was invalid, the land had not vested in the council. Therefore, the council had no title to convey to the appellants, and their claim to ownership failed. The appeal was dismissed with costs.