Larking v Great Western (Nepean) Gravel Limited (in Liquidation) [1940] HCA 37

OF AUSTRALIA.

» " w % a APPELLANT ;

AND

(MOTIGUIDATION)<<* :. + Af DESPONDENT.

WESTERN (NEPEAN) arti PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

ving breach—Breach once for all—Waiver.

'A licence was granted by the appellant to the respondent to remove sand xd gravel from the bed of a river where the bed formed portion of or adjoined 'appellant's land. The grant was made upon the conditions that royalty be paid quarterly, that for the purpose of preventing the appellant's straying the respondent should at its own expense erect and maintain 'repair certain fences and a gate, and that if default in the performance of 'of the conditions were made by the respondent and it continued for thirty after any quarter day the appellant could determine the licence. The within which the fences and gate should be erected was not specified. respondent commenced operations under the licence about June 1937. time to time the appellant complained of the non-erection of the fences gate and in October 1939, by letter to the respondent, required that they erected within fourteen days. 'This requirement was not éomplied with, at the end of November the appellant accepted payment of royalty then In December the respondent went into liquidation, and a few days later 'appellant gave notice to the liquidator purporting to determine the licence 4, claiming possession of the premises. _ Held that in the circumstances the respondent should have erected the fences nd gate within a reasonable time of the commencement by it of operations Ets: the licence; that the non-erection thereof within such time was not BS Sontinuing breach but was a breach " once for all" ; and that, by allowing _the respondent thereafter to continue operations under the licence and accept- 2 therefor, the appellant had waived his right to determine the licence it of the breach, .