G G Crespin and Son v Colac Co-operative Farmers Limited [1916] HCA 13

21C.L.R.] OF AUSTRALIA. 205

plaintiff left to pursue her remedy, if she have one, in a new H.C. Oy A. action where the question whether the defendant is liable though en!

not guilty of negligence may be determined. Fun.arton v. Appeal allowed. Order appealed from dis- \, th ene s charged. Case remitted to the Supreme Puvcrrrc

Court for a new trial before a Judge sae of the Supreme Court. Costs of first 'rcumxe trial and of application to the Judge of the County Court for a new trial and of appeal to the Supreme Court to abide

the event of the new trial.

Solicitors for the appellant, Hodgson & Finlayson. Solicitor for the respondents, G. P. Newman.

BL. [HIGH COURT OF AUSTRALIA.] G. G. CRESPIN & SON . x 5 . APPELLANTS ; PLAINTIFFS, AND THE COLAC CO-OPERATIVE FARMERS R : LIMITED re ; : : : } ESPON DENTS. DEFENDANTS, ' Ho Gnade ON APPEAL FROM 'HE SUPREME COURT OF ens

VICTORIA. MeEgournr,

March 10, 13,

Customs Duties—Contract for sale of goods—Alteration of contract where duty altered 14, 24

—Purchaser to pay amount of increase of duty—Statute—Construction—Ultra vires—Power of taxation—Incidental power—Constitutional law—Interpreta- so E tion of contract—Customs Act 1901-1910 (No. 6 of 1901—No. 36 of 1910), sec, __ Isaacs,"

152—The Constitution (63 & 64 Viet. c. 12), secs. 51 (1.), (I1.), (XXXIX.), 55. Berane

Rich JJ. VOL. XXI. iT

H.C. or A, 1916, —— G. G.

CresPin & Sow

vw Corac Co- OPERATIVE Farmers Lrp.

HIGH COURT D916.

By a contract made in Melbourne, and dated 29th May 1914, the plaintiffs agreed to sell to the defendants 80 bales of gunny bags described as "No. 1 Delta potato gunnies, shipped at Calcutta," at a certain price delivered. The terms of payment were "net cash against rail receipts," and delivery was to be made, 40 bales in December 1914 and 40 bales in January 1915. At the date of the contract, gunny bags were free from Customs duty, but, on 3rd December 1914, a duty of 10 per cent. ad valorem was imposed upon them, The plaintiffs delivered to the defendants 65 bales which had been entered for home consumption before 3rd December 1914, and 15 bales which had not been so entered until after that date and on which they had paid a certain sum for duty. In an action by the plaintiffs to recover from the defendants the amount so paid,