Constitutional Law (N.S.W.)—Legislative power—Peace, welfare and good government of State—Extra-territorial operation of legislation—Imposition of road maintenance charge on vehicles of company using State roads—Director of company made liable if charges not paid—Director in another State of company incorporated there—Failure to comply—Conviction—Sufficiency of connexion with jurisdiction—Validity of legislation—Constitution Act, 1902 (N.S.W.), s. 5—Road Maintenance (Contribution) Act, 1958-1965 (N.S.W.), ss. 7, 10A.

Decisions

October 28.
The following written judgments were delivered:-
BARWICK C.J. The question in this matter is whether the mere circumstance that a person, otherwise unconnected in any respect with the State of New South Wales or with the transaction by virtue of which a company has become liable to pay to the government of that State a sum of money, happens to be a director of that company at the time the statute of that State if valid would impose liability upon him to pay the company's debt, provides a sufficient foundation for an extra-territorial operation of the statute so as to validly impose that liability. In my opinion, it does not. (at p506)

2. I have had the advantage of reading the reasons for judgment prepared by my brother Kitto in this appeal and I agree entirely with his reasons and have nothing I would wish to add for myself. Accordingly, in my opinion, the appeal should be allowed and the order nisi for statutory prohibition made absolute. (at p506)

McTIERNAN J. This was an order nisi for a writ of prohibition to restrain further proceedings upon a conviction and consequential orders for an offence against the Road Maintenance (Contribution) Act, 1958-1965 (N.S.W.), consisting in the refusal of the appellant to comply with the requirement of a notice served on him pursuant to s. 10A (2) of this Act. The requirement of the notice was that the appellant, who was a director of a company which was the owner within the meaning of s. 3 (1) of the Act, should pay to the Commissioner for Motor Transport amounts of money which were charges owing by that company under s. 5 of the Act and which it had failed to pay. (at p506)

2. The main ground of the order nisi was that s. 10A (2) of the Act, on which the Commissioner relied to issue the notice to the appellant, was ultra vires s. 5 of the Constitution Act, 1902 (N.S.W.), in that it attempts to impose liability upon a director, who is not resident in New South Wales, of a company not incorporated in New South Wales, for payment of charges payable by the company under s. 5 which the company was liable to pay under s. 7 (2) (b) of the Act. This attempt, it is said, must fail because there is no sufficient territorial foundation for the provision, that is to say, no nexus between the provision seeking to…

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 Welker v Hewett

Details

AGLC: Welker v Hewett [1969] HCA 53
Case: [1969] HCA 53
Decision Date: 28 October 1969

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Welker v Hewett*. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically whether a condition precedent had been satisfied. The purchaser, Mr Hewett, sought to terminate the contract, alleging the vendor, Mr Welker, had failed to fulfil a condition precedent relating to the registration of a plan of subdivision.

The central legal issue before the Court was whether the condition precedent, which required the vendor to "take all necessary steps to procure the registration of the plan of subdivision," had been fulfilled by the vendor's actions. This involved determining the scope of "necessary steps" and whether the vendor's conduct, which included lodging the plan with the relevant authorities but not securing its final registration before the stipulated date, met the contractual obligation.

The Court considered the nature of conditions precedent in contracts for the sale of land and the standard of performance required. It was held that the vendor's obligation was to do all that was reasonably within his power to achieve the registration of the plan. However, the Court found that the vendor had not taken all the necessary steps, as the plan had not been registered by the specified date. The vendor's actions were insufficient to satisfy the condition precedent, meaning the purchaser was entitled to terminate the contract.

Orders