Barringer v Nyngan Municipal Council [1953] HCA 4

High Court of Australia Dixon C.J. Webb and Taylor JJ. Barringer v Nyngan Municipal Council [1953] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 5, 1953 Dixon C.J.

This appeal is brought by the plaintiff in a suit from a decree of the Chief Judge in Equity dismissing the suit. The decree was made on a motion by the defendant for a decree upon the facts alleged and admitted in the statement of claim, amplified in one respect by a letter passing between the solicitors. The plaintiff is the owner of a building in the Municipality of Nyngan and the defendant is the Council of that Municipality. The purpose of the suit was to obtain relief against an order made by the defendant council for the demolition of the building. In giving the order the defendant council purported to act under s. 317B of the Local Government Act 1919-1951 N.S.W.. The order was given on 20th November 1951 and it ordered the plaintiff to demolish the building within ninety days of that date. The plaintiff attacks the validity of the order as beyond the authority conferred by the provision. The plaintiff says that s. 317B does not authorize a council to make an absolute order for the demolition of a building. The order which, according to the plaintiff, it authorizes is that the owner demolish the building or in the alternative, that is if the owner so chooses, re-erect the building or put the same into a state of repair and good condition to the satisfaction of the council. The policy of the provision, so it is said, is to allow the owner to put the building into proper shape, if he prefers to do that, and otherwise to require him to pull it down and if he makes default to empower the council to execute the order, a policy characteristic of similar legislation not only in New South Wales but in England and in other Australian States.