Storey v North Sydney Municipal Council [1970] HCA 44

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Storey v North Sydney Municipal Council [1970] HCA 44

ORDER Appeal allowed. Respondent council to pay the appellant's costs of this appeal. Order of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be dismissed. Respondent council to pay the costs of the appellant in that appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1970, Nov. 10 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and those prepared by my brother Owen. I am in agreement with their reasons and conclusions and find no need to add anything on my own behalf. In my opinion the appeal should be allowed.

McTiernan J.

I would allow this appeal and restore the decretal order of McLelland C.J. in Eq.

The words " Local Government Act, 1919, as amended" appearing in the restrictive covenant in question would be satisfied by applying them to the Local Government Act, 1919-1945 N.S.W.. However it does not seem that it would make any difference to the result of the case to give the words "as amended" an ambulatory operation.

The full effect of the restrictive covenant is to be ascertained by reading it with s. 4 of the Local Government Act, 1919-1945, which contains the definition of the term "public reserve" mentioned in the covenant. The definition reads thus:

"Public reserve" means public park and any land dedicated or reserved from sale by the Crown for public health, recreation, enjoyment or other public purpose of the like nature, but does not include a common.

It is clear that the covenant is not restricted only to prohibiting the use of the leased land for a purpose other than that of a public park. The covenant extends to prevent the land from being used for any purpose which does not pertain to "public health, recreation, enjoyment or other public purpose of the like nature". The concluding words of the definition "but does not include a common" are not relevant in this case. The covenant's phrase "for the purpose of a public reserve" should therefore be taken to attract the terms "for public health, recreation, enjoyment or other public purpose of the like nature".