relating to land without consent of Treasurer Purchase - Otherwise acquire" -Option to purchase land at specified sum conferred by will-Exercise of option- Application of regulations-National Security (Economic Organization) Regula- tions (S.R. 1942 No. 76-1944 No. 99), Part III., regs. 6 (1), 10 (1). Constitutional Law (Cth.)-Defence-National security-Economic organization-

Regulations-Validity-Cessation of hostilities-Cause removedGrounds on which High Court may decide cause-The Constitution (63 &64 Vict. c. 12), S. 51 (vi.)-National Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), 8. 5- Judiciary Act 1903-1940 (No. 6 of 1903-No. 50 of 1940), SS. 38A, 40A.

Upon its true interpretation reg. 6 (1) of the National Security (Economic Organization) Regulations does not cover the creation or transmission of interests by will or their enjoyment and it therefore does not make unlawful the exercise of an option conferred by will to purchase land of the testator and in any case reg. 10 (1) would validate the transaction.

So held by Starke, Dixon and Williams JJ. Decision of Latham C.J., on this point, reversed. The nature of an option conferred by a testamentary instrument and the legal When on the view taken in the Supreme Court of other questions a question as to the limits inter se of the constitutional powers of the Commonwealth and of the States arises for decision, the whole cause is transmitted under S. 40A

72 CLR 102

of the Judiciary Act 1903-1940 to the High Court, which may decide it on any ground whether of State or of Federal law if the rights of the parties are thereby

Held, by Latham C.J. (in proceedings commenced on 1st September 1945), that Part III. of the National Security (Economic Organization) Regulations was valid and effectual as an exercise of the power conferred by S. 5 of the National Security Act 1939-1943 notwithstanding the cessation of hostilities in the war with Germany, Italy and Japan.

CAUSE removed into High Court under the Judiciary Act 1903-1940.

Daniel Francis O'Neill instituted proceedings in the Supreme Court of Victoria by originating summons against Florence Christo- pher O'Connell and Jerome Joseph O'Connell, executors of the will of Jerome O'Connell deceased, for the determination of questions arising under the will. The cause was removed into the High Court under S. 40A of the Judiciary Act 1903-1940. The facts are stated in the judgments hereunder.

Ashkanasy K.C. and Rapke, for the plaintiff. Dean K.C. and Frederico, for the defendants. Coppel K.C. and P. D. Phillips, for the Commonwealth (inter- vening).

Cur. adv. vult.

LATHAM C.J. delivered the following written judgment :- Cause removed to the High Court under the Judiciary Act 1903- 1940 by reason of a question arising as to the limits inter se of the constitutional powers of the Commonwealth and the States.

By his will the late Jerome O'Connell, who died on 26th October 1944, gave devised and bequeathed all his property to his trustees upon trust to sell, call in…

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 O'Neill v O'Connell

Details

AGLC: O'Neill v O'Connell [1946] HCA 59
Case: [1946] HCA 59
Decision Date: 11 April 1946

CaseChat Overview and Summary

The case of O'Neill v O'Connell concerned a dispute over the exercise of an option to purchase land granted by a will. Daniel Francis O'Neill, the plaintiff, sought to exercise an option to purchase the freehold of business premises from the estate of Jerome O'Connell, deceased. The executors of the will, Florence Christopher O'Connell and Jerome Joseph O'Connell, were the defendants. The cause was removed to the High Court of Australia due to a question arising concerning the limits of constitutional powers between the Commonwealth and the States.

The primary legal issue before the High Court was whether the National Security (Economic Organization) Regulations, specifically regulations 6(1) and 10(1), applied to the exercise of an option to purchase land conferred by a will. The plaintiff contended that the Regulations did not apply to such testamentary dispositions, or alternatively, that the Regulations were invalid. The defendants argued that the exercise of the option constituted a "purchase" or "otherwise acquire" of land within the meaning of regulation 6(1), rendering the transaction unlawful without the Treasurer's consent.

A majority of the High Court, comprising Starke, Dixon, and Williams JJ., held that regulation 6(1) of the National Security (Economic Organization) Regulations did not apply to the creation or transmission of interests by will, nor to their enjoyment. Consequently, the exercise of the option conferred by the will to purchase the testator's land was not rendered unlawful by this regulation. Furthermore, the Court found that even if regulation 6(1) were applicable, regulation 10(1) would validate the transaction. Latham C.J., dissenting on this point, had previously held that the Regulations were valid and effectual, but found that the plaintiff's exercise of the option did not constitute a "transaction" to which regulation 10 applied, and that requiring the executors to proceed would compel them to commit an offence. The decision of Latham C.J. on the applicability of the Regulations was reversed.

Orders