Dixson Trust Limited v Beard Watson Limited [1915] HCA 22

19 C.L.R.] OF AUSTRALIA. 499

(HIGH COURT OF AUSTRALIA.]

DIXSON TRUST LIMITED . e i . APPELLANTS ; DEFENDANTS, AND BEARD WATSON LIMITED . é A . RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Practice—Demurrer— Action on covenant—Plea alleging implied condition ~ H.C. ov A. Language of deed not set out—Postponement of hearing of demurrer until 1915. issues of fact decided, Mw

SyDNE

March 30,31.

In an action upon a covenant the declaration did not set out the actual langnage of the covenant but the pleader's construction of it, and a plea to it alleged that a condition should be implied from the deed, but did not set out Grimith ©.J., the language of the deed, A demurrer to the plea having been allowed by the Supreme Court of New South Wales, on appeal to the High Court,

Held, that the order allowing the demurrer should be discharged, and the hearing of the demurrer postponed until after the trial of the issues of fact, with liberty to either party to amend,

Decision of the Supreme Court of New South Wales: Beard Watson v. Dixson Trust, 14 8.R. (N.S. W.), 133, in part set aside.

AppEat from the Supreme Court of New South Wales.

In an action in the Supreme Court brought by Beard Watson Limited against the Dixson Trust Limited the first count of the declaration alleged that "at and before the time of the agreement hereinafter mentioned the plaintiffs were tenants of the defen- dants of certain premises situated in George Street, Sydney, in

HIGH COURT (1915.

H.C. or A. the State of New South Wales, and were carrying on business

1915.

Warson Limirep.

therein as merchants and suppliers of furniture, and the plain- tiffs were desirous that certain alterations should be made to the said premises by the defendants; whereupon the defendants by deed covenanted amongst other things with the plaintiffs to effect the said alterations as soon as conveniently might be in accord- ance with plans and specifications to be prepared by one John Reid of Sydney, architect, should such plans and specifications be approved of in writing by the defendants—provided that the said alterations should be so executed as to admit of the said premises being at any time restored to their condition at the time of the said alterations without injury, and so that mean- while the upper storey of the said building should be adequately supported: and the plaintiffs say that plans and specifications were prepared as aforesaid and that the said plans and specifi- cations were approved of in writing by the defendants, and the defendants proceeded to effect the said alterations, yet the said alterations were not effected as soon as conveniently might be or in accordance with the said plans and specifications or so that meanwhile the upper storey of the said building was adequately supported, but were so effected that during the progress of the said alterations the upper storey of the said building was not adequately supported and collapsed; and by reason of the premises large quantities of the goods, merchandise, fixtures and trade fittings of the plaintiffs then being on the said premises were destroyed and damaged," and the plaintiffs incurred certain expense and loss and suffered other damage.