.7108/51 J. 4 Gourley, Gort. Print, Merb. {0 #2 ISS Ke any Te BRN IN THE HIGH COURT OF AUSTRALIA ge di LION & ORS. ONG. REASONS FOR JUDGMENT | - | LEf- | |} Ve PPEALS No & OF PRINCIPAL REGISTRY The appeals will be dismissed, but as the respondent Monica Marjorie Long has died since the hearing of the appeals and no party has yet been added to represent her estate the orders will not be drawn up until such a party has peen added. Orders dismissing the appeals with costs may then be drawn up by the Registrar and sealed but as of a date after such party has been added.' HAMILTON & ORS LONG DIXON C.J. NoTIERNAN J. JUDGMENT TAYION J. HAMILTON & ORS ve. LONG DIXON C.J. NcTIERNAN J. JUDGMENT TAYLOR J. On and before the 22nd December 1947 the respondent, a trained nursihg sister carried on a private hospital for "chronic cases" on premises owned by her and known as "Kanilla", Mitchell Road, Brunswick, near Melbourne. On that date she entered into an agreement to sell the goodwill o£ the said hospital to the appellant Gorman, who was a registered nurse, and to grant to the latter a lease of the premises for a term of three years upon certain specified terms and conditions. This appellant conducted the hospital until September or October 1949 when she, in turn, sold the business and the benefit of the lease to the appellant Constance Ivy Hamilton who was a trained nursing sister. The third appellant William Hamilton is the husband of Constance Ivy Hamilton and they became partners in the business in June 1950. At the time of the first of these transactions it was unlawful for any person to use, or allow, permit, or suffer to be used any premises as a private hospital unless such premises were registered with the Commission of Public Health constituted under the Health Act 1928. 'hereafter at all material times registration of premises was required as a condition precedent to their use as a private hospital but at some stage during the history of the matter another body was substituted for the Commission as the supervising body. But both prior to and for some time after the 22nd December 1947 the subject premises were not so registered and the hospital was conducted both by Long and Gorman successively in breach of the law. The premises did not attain the status of registered premises until the 20th July 1949 which was some few months before the sale to the female appellant Hamilton. Apparently both Long and Gorman and the Commission were aware in December 1947 that the premises were not registered and the former parties believed that registration would not be granted until alterations and additions, then unspecified, should be made to the premises. Accordingly their agreement of the 22nd December 1947 recited that the Health Department had given or was about to give notice of certain alterations and additions "required in respect to the said private hospital for chronic and medical cases" and thereafter provided as follows: ™, AS between the Purchaser and the Vendor the Vendor shall accept sole responsibility for satisfying and will. satisfy the said requirements of the Health Department and the Purchaser shall not be required to accept any liability whatsoever in respect to the said requirements." "6, THIS agreement is subject to the approval of the Health Department of the Transfer of the said Private Hospital as now existing to the Purchaser being obtained and to the approval of the Public Health Department to use the said building as a private Hospital for chronic and medical cases." Nevertheless, the parties executed a lease of the premises on the same day and the purchaser thereupon, or shortly thereafter, took over the conduct of the hospital. 'The lease demised to the purchaser a term of three years from the 22nd December 1947 and an option of renewal for a further period of two years. The rent reserved was the weekly rental of four pounds with a proviso that it should be increased to £4.1Q. 0 per week when the lessor should have completed "the present alterations as required by the Health Department in respect of the said hospital for chronic and medical cases." It was not until 29th April 1948 that the parties became aware of the "requirements" of the Department of Health. These were communicated to the respondent by a notice of that date which specified a number of conditions upon the fulfilment of which the Commission intimated it would be prepared to grant registration. But before any of the work necessary to fulfil these conditions had been performed - or even commenced - a certificate of registration was granted. This certificate, which acknowledged the registration of the premises for the balance of the current year ending on the 31st December 1949, was granted on the 20th duly 1949 and was expressed to be "granted subject to the condition that the requirements as issued on 17/5/48 be completed within six months." The evidence does not appear to disclose any "requirements" of the last-mentioned date and the trial of the action seems to have proceeded on the basis that the reference in the certificate of registration is to the document dated 29th April 1949. This is but one of several curious features of the case but as the parties appear to have agreed that the case should be disposed of on this basis weare content to regard this document as containing, at least, the initial "requirements" of the Commission. . None of the work specified in that document was carried out during the stipulated period of six months but before that period expired the registration of the premises was renewed by the Department of Health for the year 1950. The renewal was not expressed to be conditional and the female appellant Hamilton was informed of it by a letter in the following terms: "I have to inform you that the Commission of Public Health at its Meeting on 20/12/49 approved of the renewal of Registration of the above Private Hospital for 1950 for 11 chronic beds." Renewals for all relevant subsequent years were effected in much the same manner. 'The letter informing Mrs. Hamilton of the renewal for the year 1951, however, contained a second paragraph in the following terms: "This registration is granted subject to the condition that all works approved by the Health Department in 1949 completed to the satisfaction of the Commission by June 30- 1953. The classification is- (chronic)." and that advising of the renewal for the year 1953 added: "This registration is granted subject to the condition that all works approved by the Health Department in 1949 are completed to the satisfaction of the Commission by June 30th 1953. The classification is (Chronic 11)." The work necessary to meet the "requirements" of the Department has now been performed. It was, apparently, commenced about the middle of 1951 and completed in the latter half of 1952. The work was, therefore, done during the occupancy of the female appellant Hamilton to whom the lease of the premises had been assigned by Gorman with the consent of the respondent and to whom by a separate instrument, to which the respondent was not a party, Gorman had purported to assign "all her right title and benefit under Clause 1 of an agreement made the twenty-second day of December one thousand nine hundred and forty seven between the vendor and Monica Marjorie Long relating to the satisfaction by the said Monica Marjorie Long all the requirements of the Health Department." But before the commencement of the work the appellants, on the 6th November 1950, commenced an action in which they claimed against the respondents specific performance of an agreement to effect alterations to the subject premises in accordance with the requirements of the Board of Health and for £5,000 damages for breach of that agreement. Subsequently, after the necessary work had been done the appellants commenced a further action in which they claimed damages "for breach of contract from the 6th November 1950 to the 4th February 1953 in respect of "an agreement dated the 2nd (sic) day of December 1947." In this action the plaintiff claimed such sum as together with any amount of damages which might be awarded in the first action should equal the sum of £5,000. No pleadings were filed in the second action because an interlocutory order which provided for a number of things including the hearing of both actions together provided by consent that the parties in the second action should be "deemed to rely by way of pleadings on the pleadings" in the first action "as amended or to be amended in accordance with my order this day in that action and that the actual delivery of pleadings herein be dispensed with." At this time the allegation of breach contained in the statement of claim was that the defendant had failed and neglected and refused to perform the provisions of Clause 1 of the agreement of the 22nd December 1947 or any part thereof and it was alleged that the value of the premises to the female plaintiff Hamilton would be greatly reduced and that she would "shortly be prevented by the said Department and by law from carrying on the said business of a private hospital at the said premises." Nevertheless both actions were heard together on the pleadings as they stood but at the end of the hearing an amendment was made by which the plaintiffs alleged a breach constituted by a failure on the part of the defendant to undertake and complete the work within a reasonable time and claimed to recover damages for the delay. The claim for damages was expressly limited to the period from the 18th October 1949 to the 4th February 1952 when the female appellant Hamilton was in occupation of the premises. In the result both actions were dismissed and judgment entered for the defendant. In these circumstances and quite apart from the question whether parties have been wrongly joined as plaintiffs it is quite clear that the plaintiffs cannot succeed in both actions. The contract alleged is not capable of supporting allegations of successive breaches of the nature alleged (see Larking v. Great Western (Nepean) Gravel Iimited (64 C.L-R. 221) per Dixon C.J. at pp. 236-237) and clearly the appeal in at least one case must fail for it would be quite wrong, even if the appellants' submissions on the main ground were correct, to attempt to decide both actions or to send both back for a new trial. At the trial and upon the appeal the appellants contended that the effect of clause 1 of the agreement of the 22nd December 1947 was to impose upon the respondent an obligation within a reasonable time to perform and execute such works as had or might shortly thereafter be specified by the Department. Such works represented, it was said, the "require— ments" of the Department and they could be satisfied only by the performance and execution of the specified works within a reasonable time. The respondent, on the other hand, contended that the clause was not in its nature a building clause under which the respondent was obliged to perform specified works simpliciter but imposed an obligation upon the respondent only to do such works as should be necessary to secure and maintain the registration of the premises as a private hospital. The learned trial judge accepted the latter view and accordingly entered judgment for the respondent. . The difficulty in the case is created by the word "requirements" for the Department was not in a position to require any alterations or additions to the premises in the sense of imposing an obligation upon either the respondent or her lessee to perform and execute them. It could, of course, and did, in fact, specify certain conditions which, in April 1948, it regarded as conditions precedent to registration and it was entitled to refuse registration or any renewal thereof if the specified works were not executed. There is little doubt, we think, that when the parties recited by their agreement of the 22nd December 1947 that the Department had or was about to give notice of certain alterations and additions "required in respect to the said private hospital for chronic and medical cases" they had in mind the necessity for registration, that the Department was about to specify the conditions upon which the premises would be registered and that it was unlikely that registration would be granted unless those conditions were fulfilled. In this setting then what does clause 1 mean? Does it mean that the respondent was obliged to perform the works specified by the Department's notice whether or not the Department thereafter insisted on their performance and execution as a condition of registration? Or does it mean that the respondent undertook to perform all such works as the Department might require as a condition of registration? It is, of course, clear that the Department might have specified particular works and a particular time for their completion and thereafter, upon consideration, withdrawn some of the "requirements" either as to subject matter or time. We cannot think that in such circumstances the respondent was obliged to execute all the works originally specified and within the time originally specified. If the parties by their agreement were speaking of requirements for registration — and the language of the document leads us to believe that they were —- then the answer is clear. The respondent was obliged to perform and execute all such works as should be required to ensure and maintain registration and to perform and execute them within the time allowed by the Department. : In these circumstances the appellants must fail because, although a time was specified as a condition of the initial registration, the Department renewed the registration for the ensuing year before this period expired and without attaching such a condition. In some of the later years the same course was pursued though, as already appears, the registration in some of the years set a further time for the performance of the Department's requirements. 'The circumstances which led the Department to take this course seem to us to be immaterial. Its ultimate requirements as to the execution of alterations to the premises both in substance and as to time were complied with. That being so;W& & of the opinion that the appeals should be dismissed.