Whitfeld Nominal v McQuade

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.