Benning v Sydney City Council [1958] HCA 48

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

BENNING ; : : : : ps . APPELLANT; PLAINTIFF, AND COUNCIL OF THE CITY OF SYDNEY . . RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Local Government (N.S.W.)—Town of Sydney—Surveyor—Power to lay mains—

Roads—Repairs—Liability—Person—Corporation—Australian Gas-light Com- pany—Company created by private statute—Work done at direction of council— Work situated at Alerandria—W hen originally created Alexandria outside area—

H. C. or A.

1958. —

Sypyey,

Subsequent statutory inclusion in area—Quaere, direction of council obligatory on April 24, 28;

company—Cost of work—Recoverability—Police (Sydney) Act of 1833 (N. S.W.), 8. 48—Australian Gas Light Company's Act of 1837 (N.S.W.), 8. 55—Australian Gas Light Company's Act of 1958 (N.S.W.), s. 5—Local Government (Areas) Act 1948 (N.S.W.), 8. 7.

Section 55 of the Australian Gas Light Company's Act of 1837 provides that if it shall at any time or times be deemed necessary or expedient by the surveyor of the town of Sydney or other person or persons having the control direction or superintendence of the said roads streets ways " (and) "lanes . . . respec- tively, to require the company to alter the situation of any of the main pipes, either by raising or lowering the same or altering their line of direction, the company shall at its own expense within ten days after receipt of the notice in writing carry out the works as requested, and in default of its so doing the said town surveyor or other person or persons aforesaid, were authorised to do the work and reasonable costs and charges of doing it were thereupon to be paid by the company. The said Act was directed generally to making provision for the lighting of the town of Sydney as described in the Government Gazette of 1lth September 1833, but the Act contemplated that some of the company's plants and mains would be situated and the company would operate outside the town limits. By the Australian Gas Light Company's Act of 1858 the purposes of the company as prescribed in the Act of 1837 were enlarged to permit the company to extend its operations and to supply gas to all public streets and highways, and also to all houses etc. beyond the boundaries and limits of the City of Sydney. Section 5 of the 1858 Act provided for the application mutatis mutandis of nineteen sections, but such sections did not include s. 55. By the