Whitfeld Nominal v McQuade - [1908] HCA 83

WHITFELD

NOMINAL DEFENDANT,

McQUADE AND ANOTHER

RESPONDENTS. PLAINTIFFS, Resumption of land by Government-Notification of resumption-Resumption of

part of property-Refusal by owner to sell part-Option of Government- Election-Implied contract-Lapse of time-Compensation for injury to land- SYDNEY,

Public Works Act (N.S. W.) 1900 (No. 26 of 1900), secs. 37, 131. Dec. 7, 8, 11.

The Government, by notification of resumption under the Public Works Act 1900, resumed portion of a residential property of the respondents for the purpose of certain public works. When the works were nearly com- pleted the respondents, relying upon sec. 131 of the Act, gave notice that they objected to selling a portion of the property, and called upon the whole, and claimed to retain the portion. In a suit by the respondents against the Government a decree was made in September 1902 that the Government was not entitled to resume the portion without taking the whole, and that if they refused to resume the whole they held the portion in trust for the respondents and must reconvey it to them. While the suit was pending the works were completed, and the resumed land vested in the Harbour Trust Commissioners. A series of appeals which extended over several years resulted in the Privy Council affirming the decree of the Supreme Court in March 1906. During the interval the Government con- tinued in occupation of the portion resumed, and no change in the position took place until January 1907, when the Government, in reply to a demand made by the respondents in August 1906, refused to resume the whole property and offered to reconvey the portion resumed.

7 CLR 711

In a second suit by the respondents, in which they contended that, in the events which had happened, the Government was bound to resume the whole, and claimed in the alternative that the Government was not entitled to revest the portion without restoring it to its original condition and paying compensation for use and occupation and loss by deprivation, or, if the land could not be so restored, making in addition compensation for the

Held, that the Government was not bound to take the whole property, but that having under the original decree an option to take the whole or to take none, and not having done anything which amounted to an election to take the whole, as soon as they had definitely asserted their intention not to resume the whole, they became trustees for the respondents of the portion

That, though the respondents were entitled in some form of proceeding to obtain compensation from the Government as trustee for any injury in the nature of waste done by it during its occupation, and for use and occupation and other damage, yet they could not obtain such relief in the present suit, as it was wholly inconsistent with the case made by the state- ment of claim: and there was no material before the Court upon which an inquiry as to such damage could be ordered.…

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.

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Details

AGLC: Whitfeld Nominal v McQuade [1908] HCA 83
Case: [1908] HCA 83
Decision Date: 11 December 1908

CaseChat Overview and Summary

This case involved a dispute between the respondents, owners of a residential property, and the appellant, representing the Government of New South Wales. The Government had resumed a portion of the respondents' property for public works. The respondents objected to selling only a part of their land and sought to compel the Government to acquire the entire property. The matter was heard in the Supreme Court of New South Wales, Equity Division, and subsequently appealed to the High Court of Australia.

The central legal issues before the court were whether the Government was legally bound to resume the whole of the respondents' property, despite having initially resumed only a portion, and whether the respondents could obtain compensation for the Government's occupation and any damage to the land in the current proceedings. The court also considered the implications of the previous decree and the passage of time on the parties' rights and obligations.

The High Court held that the Government was not obligated to take the entire property. While a prior decree had established that the Government could not resume a part without taking the whole, and that if they refused to take the whole they would hold the resumed portion in trust for the respondents, the Government had not taken any action that amounted to an election to acquire the entire property. The court reasoned that mere delay in exercising their option to take the whole or none did not create an implied contract to take the whole. The respondents' claim for compensation for injury, use and occupation, and loss due to deprivation was deemed inconsistent with the case presented in the statement of claim and could not be granted in the current suit, although the respondents were entitled to pursue such claims in separate proceedings.

The appeal was allowed, and the decision of the Chief Judge in Equity was reversed. The court found that the Government was not bound to resume the whole property and that the respondents were entitled to have the portion resumed revested in them, as offered by the Government, without further compensation in this suit. The respondents were left to pursue any claims for compensation for injury or use and occupation in appropriate proceedings.

Orders