Whitfeld Nominal v McQuade [1908] HCA 83

710 HIGH COURT [1908.

(HIGH COURT OF AUSTRALIA.}

WHITFELD R ' : " " r : APPELLANT ; Nomrar DEFENDANT,

AND

McQUADE AND ANOTHER s ' . RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H. C. or A, Resumption of land by Government—Notification of resumption—Resumplion of

1908, part of property—Refusal by owner to sell part—Option of Goverument— ~ Election—Implied contract—Lapse of time—Compensation for injury to land— Sypyry, Public Works Act (N.S. W.) 1900 (No. 26 of 1900), secs. 37, 131.

Dec. 7, 8, 1.

The Government, by notification of resumption under the Public Works eats Act 1900, resumed portion of a residential property of the respondents for Himeine Jo. the purpose of certain public works, When the works were nearly com- pleted the respondents, relying upon sec. 131 of the Act, gave notice that they objected to selling a portion of the property, and called upon the Government to resume the whole, The Government refused to resume the whole, and claimed to retain the portion. In a suit by the respondents against the Government a decree was made in September 1902 that the Government was not entitled to resume the portion without taking the whole, and that if they refused to resume the whole they held the portion in trust for the respondents and must reconvey it to them. While the suit was pending the works were completed, and the resumed land vested in the Harbour Trust Commissioners. A series of appeals which extended over several years resulted in the Privy Council affirming the decree of the Supreme Court in March 1906. During the interval the Government con- tinued in occupation of the portion resumed, and no change in the position took place until January 1907, when the Government, in reply to a demand made by the respondents in August 1906, refused to resume the whole property and offered to reconvey the portion resumed.