South Australian Harbors Board v South Australian Gas Company [1934] HCA 45

51 C.L.R.J OF AUSTRALIA. 485

{HIGH COURT OF AUSTRALIA.)

THE SOUTH AUSTRALIAN HARBORS BOARD — APPELLANT ; PLAINTIFF,

AND

THE SOUTH AUSTRALIAN GAS COMPANY . Responpent. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA,

Regulation—Repeal—Preservation of accrued rights and liabilities—Lease by public H.C. or A. authority—Covenant entitling lessee to use plant to be erected by lessor—No price 1934. fixed—Repeal of regulation fixing price—Quantum meruit—The Harbors Act cae 1913 (S.A.) (No. 1149), secs. 63, 84, 102 (11), (20), (21), 106—Acts Interpretation MELBOURNE,

Act 1915 (S.A.) (No. 1215), secs. 4, 16 (1). May 30, 31; June 1,5, 6,7. The South Australian Harbors Board, formed a plan for establishing" """ 3

at Osborne in South Australia a coal wharf equipped with electrically ADELAIDE, driven appliances for discharging colliers and delivering coal. Pursuant Oct. 5. to this plan the Board leased certain land in proximity to the proposed stance Dixon, wharf to the South Australian Gas Co. for 99 years from Ist January 1924. ,,Hvatt and > By clause 15 of the lease the Board covenanted that it would " within three

years from the commencement of the said term erect . . . adequate coal- handling appliances for the purpose of discharging and handling coal and the lessee shall have the right of taking delivery from the said plant . . . at such point . . . asmay . . . be mutually agreed." The lease did not stipulate the amount to be charged by the Board for the use of its plant. 'On 4th December 1929 the Governor in Council made a regulation purporting to be made under secs. 63, 84 and 102 (11) and (21) of the Harbors Act 1913 (S.A.) fixing the amount at 3s. per ton of coal delivered, with an additional 1d. a ton for "tween-deck vessels, with certain rebates. This regulation was revoked on 19th June 1930; and on 25th August 1930 the Board under sec. 63 of the Harbors Act 1913 passed a resolution adopting the same charges and rebates. Subsequently the Board claimed from the Gas Co. remuneration for the use of its plant during 1930 and 1931 at the rate specified by the regulation and the resolution.