Municipal Council of Sydney v Australian Metal Company Limited [1926] HCA 10

HH. C. or A. 1926.

_~ MELBOURNE,

March 2-5, 8.

Sypyey, April 22,

Knox 0.J., Isaacs and Higgins JJ

HIGH COURT

(HIGH COURT OF AUSTRALIA.]

THE MUNICIPAL COUNCIL OF SYDNEY . APPELLANT; APPLICANT,

AND THE AUSTRALIAN METAL COMPANY

LIMITED 5 é " = 0 ReEsPoNDENT,

' RESPONDENT.

ON APPEAL FROM A JUSTICE OF THE HIGH COURT.

Contract—Validity—Company—Hnemy subject—Proclamation of Governor-General— Declaration by Attorney-General—Contract made before War-—Variations made during War—* Transactions" —Waiver—Trading with the Enemy Act 1914- 1916 (No. 9 of 1914—No. 20 of 1916), sec. 2—Enemy Contracts Annulment Act 1915 (No. 11 of 1915), secs, 2, 3.

In March 1913 the respondent company contracted to supply and erect certain machinery for the appellant. In March 1914 the machinery was erected, and in June 1914 it broke down. By an agreement made in January 1915 the respondent agreed to replace the defective parts, and did so in April 1915. Shortly afterwards the machinery again broke down. On 7th July 1915 the Governor-General issued a proclamation under the Trading with the Enemy Act 1914 by which it was proclaimed (inter alia) that any transaction with or for the benefit of a company which the Attorney-General by notice declares to be, in his opinion, managed or controlled, directly or indirectly, by or under the influence of, or carried on wholly or mainly for the benefit or on behalf of, persons of enemy nationality, was declared to be trading with the enemy, and was prohibited. By a notice dated 16th July 1915 and published on 22nd July 1915, the Attorney-General declared the respondent to be such a company. A

Held, that by reason of sec. 2 of the Trading with the Bnemy Act 1914-1916 and secs, 2 and 3 of the Hnemy Contracts Annulment Act 1915, the agreement of January 1915 and, subject to the exception mentioned in sub-sec. 5 of see. 3 of the latter Act, the agreement of March 1913 were null and void, and there- fore could not be taken into consideration in determining the liability of the respondent to the appellant in respect of the break-down of the machinery.