Thompson v Randwick Municipal Council [1950] HCA 33

High Court of Australia Williams, Webb and Kitto JJ. Thompson v Randwick Municipal Council [1950] HCA 33

ORDER Appeal allowed. Decree of the Supreme Court of New South Wales in Equity set aside. Order that the respondent, its servants and agents, be restrained from acquiring or attempting to acquire the lands of the respective plaintiffs by resumption pursuant to its resolution of 20th January 1948 and its application of 9th August 1948 under s. 536 of the Local Government Act 1919, as amended. Order the respondent to pay the costs of the appellants of this appeal and of the proceedings in the Supreme Court.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 7 Williams, Webb and Kitto JJ.

This is an appeal by the plaintiffs from a decree of the Supreme Court of New South Wales in Equity (Roper C. J. in Eq.) dismissing with costs a suit brought by them to obtain injunctions restraining the defendant Council from resuming certain lands which they own in the Municipality of Randwick for the purposes of a scheme resolved upon by the Council on 20th January 1948. The Council has applied to the Governor through the Minister under the provisions of ss. 532 and 536 of the Local Government Act 1919 as amended to have these lands resumed for the purposes of this scheme. The lands in question comprise a number of lots shown on an old plan of subdivision situated in an area in Coogee which is bounded on the north by Cairo Street, on the south by Pearce Street, on the east by Alexandria Parade, and on the west by Denning Street. The scheme provides for the construction of a new road running north and south midway between and parallel to Denning Street and Alexandria Parade. It also provides for the closing of the eastern end of Bloomfield Street and the whole of Wisdom Street. These two streets, which run east and west from Alexandria Parade to Denning Street between Cairo Street and Pearce Street, are not made roads but are two of the streets each sixty-six feet wide shown on the plan of subdivision of which the plaintiffs' lands form part. Alexandria Parade is also not yet constructed but the Council hopes that this will be done as part of a plan for building a marine drive along the ocean front. The Council proposes to substitute the new road for the portion of Bloomfield Street proposed to be closed and for Wisdom Street. The scheme provides for the re-subdivision of a number of allotments in the old subdivision to conform to this alteration of roads. As part of the scheme it is proposed to create four new lots in the portion of Bloomfield Street to be closed and four new lots in Wisdom Street, all these lots having frontages of thirty-three feet to the new road.