Whitfeld Nominal v McQuade [1908] HCA 83

Whitfeld Nominal v McQuade [1908] HCA 83

The Government was not bound to take/resume the whole property; the right/option to do so arose out of decree, and having unequivocally declined to take the rest after due demand, it is only obliged to reconvey the part resumed. No election or implied contract was constituted by mere occupation or delay; compensation for use and occupation and injury may be sought in appropriate proceedings but cannot be granted in the present suit as pleaded.

Parties
Appellant; Nominal Defendant: Whitfeld; Respondents; Plaintiffs: McQuade and Another
Jurisdiction
Australia
Judgment Date
11 December 1908
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales (equity Division); Decision of A.h. Simpson C.j. in Equity Reversed
Outcome
Appeal allowed; decree of Supreme Court (Simpson C.J. in Equity) discharged; suit dismissed.
Legal Topics
Land Resumption, Government Powers, Option to Purchase, Compensation for Use and Occupation, Obligations of Trusteeship, Election by Crown, Meaning of S.131 Public Works Act (nsw) 1900
Administrative Law Property Law Equity Land Resumption Government Powers Option to Purchase Compensation for Use and Occupation Obligations of Trusteeship +2 more

Case Brief

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Parties

Whitfeld

Appellant; Nominal Defendant

McQuade and Another

Respondents; Plaintiffs

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales (equity Division); Decision of A.h. Simpson C.j. in Equity Reversed

Legal Issues

  1. 1 Whether the Government is bound under s.131 Public Works Act 1900 to resume the whole of the property ('Bomera') after resumption of a part and objection by the owner.
  2. 2 Whether the Government's conduct amounted to an election or implied contract to take the whole property.
  3. 3 Entitlement of respondents to compensation for injury, use and occupation.

Ratio Decidendi

The Government was not bound to take/resume the whole property; the right/option to do so arose out of decree, and having unequivocally declined to take the rest after due demand, it is only obliged to reconvey the part resumed. No election or implied contract was constituted by mere occupation or delay; compensation for use and occupation and injury may be sought in appropriate proceedings but cannot be granted in the present suit as pleaded.

Court Disposition

Appeal allowed; decree of Supreme Court (Simpson C.J. in Equity) discharged; suit dismissed.

Orders

  • Suit dismissed with costs, without prejudice to plaintiffs' right to seek compensation in other proceedings.
  • Respondents ordered to pay costs of the appeal.