tion in contract-Park-Representation-Statement of intention-Collateral promise or warranty-Interlocutory injunction-Local Government Act 1919-1951 (No. 41 of 1919-No. 46 of 1951), SS. 4, 344 (1), 347, 348 (1), 496, 518, 518A.

A local government council issued a pamphlet in which it stated that its housing programme provided for the erection of 2,500 attractive homes planned and orientated to suit local conditions and constructed on modern subdivisions complete with all services, children's play areas, park areas MELBOURNE, street beautification, roads, footpaths, &. Having been supplied by a March 11. housing officer of the council with a copy of the pamphlet and an application form, the plaintiff made a formal application for a house and received from the town clerk a letter in which he was offered a dwelling which upon inspection he found to be opposite two park areas. During a discussion with the housing officer the plaintiff spoke of the attraction the parks meant for him and the officer pointed on a plan to the two pieces of land and said they would both be park areas. A few days later the plaintiff informed that officer that he would buy the house, again mentioning the parks. The council agreed that he should have the house, and a contract for the sale thereof to the plaintiff

85 CLR 2

was executed by both parties. Some days later the plaintiff entered into occupation. About a year later the council resolved that among other areas the said two park areas should be subdivided and that houses should be built on the allotments. The plaintiff filed a statement of claim. A motion by him for an interlocutory injunction was dismissed by the Supreme Court of New South Wales on the ground that there was not any contract to carry out the plan embodying the housing project and that no basis could be found for an injunction in estoppel, because there was not any representation as to an existing fact. On appeal by the plaintiff,

Held (1) that although to obtain such an injunction the appellant must make a prima-facie case in support of the existence of the right he sought to enforce or protect, he was not required finally to establish the issues upon which the existence of that right depended and (2) that the appellant had made out a prima-facie case of a collateral if not of an implied promise or warranty on the part of the council that the areas in question would be used as a park or parks and not otherwise, therefore the appeal should be allowed and an interlocutory injunction granted.

Decision of the Supreme Court of New South Wales (Roper C.J. in Eq.) Shepperd v. Ryde Municipal Council (1951) 69 W.N. (N.S.W.) 49; 18 L.G.R. 98, reversed.

APPEAL from the Supreme Court of New South Wales.

In a…

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 Shepperd v Ryde Corporation

Details

AGLC: Shepperd v Ryde Corporation [1952] HCA 9
Case: [1952] HCA 9
Decision Date: 11 March 1952

CaseChat Overview and Summary

In *Shepperd v Ryde Corporation*, the plaintiff sought an interlocutory injunction to restrain the defendant council from proceeding with a housing scheme. The dispute arose from the sale of land by the council, which had prepared a plan of subdivision. The plaintiff alleged that a representation made by the council regarding the use of a portion of the land as a park formed part of the contract of sale, either as a collateral promise or warranty.

The court was required to determine whether the council's statement of intention concerning the park constituted a binding contractual obligation. Specifically, the court had to consider whether the representation was sufficiently clear and definite to be incorporated into the contract, and if so, whether it amounted to a collateral promise or warranty that could be enforced against the council.

The court reasoned that for a statement to be considered a collateral promise or warranty, it must be made with the intention of inducing the other party to enter into the main contract. In this instance, the council's representation regarding the park was found to be a mere statement of intention, not a firm promise. The court held that the plan of subdivision, which was exhibited at the time of sale, did not contain any binding commitment to reserve the land as a park. Consequently, the plaintiff's claim for an injunction based on a breach of contract failed.

Orders