MOLODYSKY v LANSTEL PTY LIMITED [1989] NSWCA 147

MOLODYSKY v LANSTEL PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY JA and Hope AJA 10 October 1989, 22 November 1989

[1989] NSWCA 147

LICENSES — nature of — agreement between parties agreement that license be transferred to a future purchaser of private "hospital" if requested by one party — whether "hospital" in that context means the physical buildings or the business or both — held: (Hope AJA, Kirby P and Mahoney JA concurring) It means the right to conduct the business — appeal (from McLelland J) dismissed.

Jack v Smail (1905) 2 CLR 684; Slatter v Railway Commissioners for New South Wales (1931) 45 CLR 68; Mullen v Hood (1935-36) 54 CLR 35; Dougan v Ley (1946) 71 CLR 142. Metropolitan theatres Limited v Harris (1935) 35 SR (NSW) 228; and Ex Parte Berry; Re Kessell (1936) 36 SR (NSW) 485.

CONTRACT - meaning of expression in - ambiguity - intention of parties - proper approach to - Codelfa Constructions Pty Limited v State Rail Authority of New South Wales (1981-82) 149 CLR 337, 352 applied.

PUBLIC HEALTH - private hospital - license of - whether corporation might hold having regard to provisions of Private Hospital Act 1908 - held: (Hope AJA; Kirby P and Mahoney JA reserving the point) It might not.

WORDS and PHRASES - "hospital".

Private Hospitals Act 1908, s2, s6, s7, s8, s9, s9A, s9B, s10.

ORDER Appeal dismissed with costs.

Kirby P Like Mahoney JA, I would reserve the question, which was debated in this appeal, whether it is possible, under the Private Hospitals Act 1908 for a license to be held by a corporate body. Otherwise, I agree for the reasons stated by Hope AJA, that the appeal should be dismissed with costs. With his Honour, I would decline to resolve the issues remaining between the parties. They should be dealt with in the Equity Division.