DALEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTD [1996] NSWCA 134

DALEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE JJA and ABADEE AJA 6, 19 September 1996 [1996] NSWCA 134

TRIAL JUDGE'S finding regarding absence of breach of lease for alleged non- repair of roads and breach of Prickly Pear Act 1987 upheld — finding of breach of Noxious Weeds Act 1993 reversed — approach to construction of obligations under that Act

King v Tait (1952) 52 SR 137, applied.

Clarke JA I agree with Cole JA but I wish to add a further ground for rejecting the appellant's argument concerning the alleged breach of the Prickly Pear Act 1987.

(1) Section 9(1) of that Act reads:

9(1) An occupier of land which is, or becomes, free from prickly pear shall keep and maintain the land entirely free from prickly pear.

(2) An occupier who contravenes subsection (1) without reasonable excuse is guilty of an offence and liable to a penalty not exceeding 20 penalty units.

In my opinion that section imposes an obligation on an occupier whose land is free of prickly pear at the time it becomes the occupier, or whose land later becomes free of the pear during this occupation, to ensure that the land is kept entirely free of the pear. It is not obliged by this particular sub-section to eradicate the prickly pear. Any obligation to take that action arises under a different statutory provision. Section 9(1) predicates an existing state (freedom from prickly pear) which the occupier is required to maintain.

In the present case the appellant sought to establish that in a period well before the respondent's occupation the land became free of prickly pear. Even if it had established that the property was free of prickly pear between 1984 and 1989 that would have been an insufficient basis for concluding that the respondent had breached s 9(1). That is because that finding would not have established that the land was, or had become, free of prickly pear at the time the respondent became the occupier. respondent became the occupier.