Rosenblum v Brisbane City Council [1957] HCA 98

High Court of Australia Dixon C.J. McTiernan, Williams Webb and Kitto JJ. Rosenblum v Brisbane City Council [1957] HCA 98

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 23 Dixon C.J., McTiernan, Williams Webb and Kitto JJ.

This is an appeal from a judgment of the Supreme Court of Queensland (Stanley J.) in an action between the appellants as plaintiffs and the respondent council as defendant. The purpose of the action was to obtain a decision as to whether an ordinance of the council, made under The City of Brisbane Acts 1924 to 1954 Q., applied to certain premises known as 19 Bayview Terrace, Clayfield, in the City of Brisbane, so as to forbid the use of the premises for any purpose other than residential purposes. Stanley J. held that it did. He dismissed a claim by the plaintiffs for declarations which would have established that the ordinance did not prevent their use of the premises for purposes of commerce or business and in particular for the carrying on of the business of catering for and accommodating social functions wedding and other receptions, and entertainments of a like kind, and the conduct of the affairs of a company called the Young Men's Hebrew Association (Qld.) Limited. His Honour upheld a counterclaim by the council for a declaration that the use of the premises by the plaintiffs or either of them for the purpose of a catering establishment for wedding, social and kindred functions was contrary to the ordinance and unlawful, and granted an injunction against such use.

The ordinance, which forms Chap. 35 of the council's ordinances, came into force on 3rd December 1955, replacing an earlier ordinance, similarly numbered, which this Court considered in Vitosh v. Brisbane City Council [1] . It provides generally, by cl. 2, that no person shall use any land (whether having a building thereon or not) or use or erect any building or part of a building on any land, within the city, for any purpose other than residential purposes. This prohibition is to apply except as thereafter provided in the ordinance. Clause 5 makes an excepting provision: "Nothing herein contained", it says, "shall prevent the use of any land or building or part of a building for the purpose for which such land or building or part of a building was used at the date of the coming into force of this chapter, or for such other purpose as the board may permit".