Sydney City Council v Garbett Pty Ltd [1995] HCA 2

High Court of Australia Brennan, Deane, Toohey, Gaudron and McHugh JJ Sydney City Council v Garbett Pty Ltd [1995] HCA 2

ORDER Appeal allowed, orders of New South Wales Court of Appeal set aside and, in lieu thereof, declare that the liability of the respondents for rates was not affected by reason of the fact that a rate notice for a rate was not served within the year for which the rate was made.

Judgment reserved

28 June 1995 Brennan, Deane, Toohey, Gaudron and McHugh JJ.

This appeal from an order of the Court of Appeal of New South Wales concerns the liability of the respondents for rates levied by the appellant Council for a number of years prior to the year in which notices claiming the rates were served on the respondents. The notices were served by post. The Council contends that the proviso to s 139(2) of the Local Government Act 1919 NSW (the Act) [1] preserved the validity of notices served outside the years for which the rates were made.

1. The relevant sections of this Act were repealed by the Local Government (Consequential Provisions) Act 1993 NSW.

At the relevant time, s 139 provided:

(1) Subject to the provisions of this Act every rate shall be made and levied for one year commencing on the first day of January in the year in which the rate is made or the year following the year in which the rate is made.

(2) Every rate shall:

(a) be made by resolution of the council; and

(b) be levied by the service of a rate notice:

Provided that the liability of any person for rates shall not be affected by reason only of the fact that notice has not been given to such person within the year for which the rate is made.

This proviso shall have effect as if it had been inserted in this Act on the first day of January, one thousand nine hundred and thirty-six.