Howarth v McMahon [1951] HCA 19

Howarth v McMahon [1951] HCA 19

The council's compulsory acquisition was undertaken only to acquire the defendant's land and sell it to the sub-branch of the League. Section 532 required the resumption to be for a purpose of the Local Government Act 1919-1948, and s. 358 (1) (f) did not authorise that course because it empowered the council to provide, control and manage or subsidise relevant clubs, not to resume land for resale to an independent body. The resumption was therefore ultra vires and void, so the suit for mandatory injunctions failed and the appeal was dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal From a Decretal Order in a Suit Instituted by Originating Summons Seeking Mandatory Injunctions / Appeal to the High Court of Australia From Roper C.j. in Eq.
Outcome
Appeal dismissed with costs.
Legal Topics
['ultra Vires Resumption of Land' 'vesting by Gazette Notification' 'local Council Powers' 'mandatory Injunction for Removal of Bricks']
['administrative Law' 'local Government' 'property Law' 'compulsory Acquisition'] ['ultra Vires Resumption of Land' 'vesting by Gazette Notification' 'local Council Powers' 'mandatory Injunction for Removal of Bricks']

Case Brief

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Procedural Posture

Appeal From a Decretal Order in a Suit Instituted by Originating Summons Seeking Mandatory Injunctions / Appeal to the High Court of Australia From Roper C.j. in Eq.

Legal Issues

  1. 1 ['Whether the resumption notice validly vested the land in the Municipality of Redfern under the Local Government Act 1919-1948 and the Public Works Act 1912.' "Whether the Gazette notice was conclusive of the council's authority to resume the land." "Whether acquiring land compulsorily in order to sell it to the Redfern Subbranch of the Returned Sailors, Soldiers and Airmen's Imperial League of Australia was a purpose of the Local Government Act 1919-1948." 'Whether s. 358 (1) (f) empowered the council to resume land for sale to a returned sailors and soldiers club.']

Ratio Decidendi

The council's compulsory acquisition was undertaken only to acquire the defendant's land and sell it to the sub-branch of the League. Section 532 required the resumption to be for a purpose of the Local Government Act 1919-1948, and s. 358 (1) (f) did not authorise that course because it empowered the council to provide, control and manage or subsidise relevant clubs, not to resume land for resale to an independent body. The resumption was therefore ultra vires and void, so the suit for mandatory injunctions failed and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']