Johnson's Tyne Foundry Pty Ltd v Shire of Maffra [1948] HCA 46

High Court of Australia Latham C.J. Starke, Dixon, McTiernan and Williams JJ. Johnson's Tyne Foundry Pty Ltd v Shire of Maffra [1948] HCA 46

ORDER Appeal against judgment of Supreme Court for defendant shire allowed with costs. Judgment for defendant shire set aside. Judgment entered for appellant company for £1,470 3s. 6d. against defendant shire with costs, including costs of pleadings, interrogatories, discovery, shorthand notes of evidence and proceedings at the trial and any further costs which the appellant has paid or may pay to the defendant Hallows under the judgment of the Supreme Court.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 16 Latham C.J.

This is an appeal from a judgment of the Supreme Court of Victoria (Lowe J.) in which the appellant company sought to recover payment for work done in repairing a steam roller belonging to the respondent municipality. The learned judge gave judgment for the defendant shire upon the ground that the contract upon which the plaintiff relied was not made in accordance with s. 501 (1) (c) of the Local Government Act 1928, and that that provision was mandatory, so that the municipality was not bound by a contract which was not made in accordance with the section, even though the municipality had received the benefit of the contract.

Section 501 of the Local Government Act 1928 is in the following terms:—

The council of every municipality may in the name and on behalf of the municipality enter into contracts for the purposes of this Act and every such contract may be varied or discharged as follows (that is to say):—

(a) Any contract which if made between private persons would be by law required to be in writing and under seal the council may make in writing and under the common seal of the body corporate and in the same manner may vary or discharge the same.