Holmes 405-413.-Power to alter level of streets, "there- remedy is perhaps that Section 405 is mandatory, and tofore levelled or paved." The Council of a borough council may be compelled to fix the levels. has no power to alter the level of streets theretofore v. Mayor of Ballarat, 6 W. W. and a'B. (L.) 210. levelled or paved without making compensation to Lavezzolo v. Mayor of Daylesford, 1 W.W. and a’B. (E.) the adjoining owners levelling or paving of a 113, 118. Here the council were acting in the interest permanent character being equivalent to and presuppos- of the majority of ratepayers, and the hardship would ing a formal fixing of the levels. (Williams J., dubi- be on them. Under the old Acts there were provisions tante.) Kilpatrick v. Mayor of Prahran, 11 V. L. R. for compensation in such cases as this, but they have 203, followed. McDonald v. Shire of Coburg, 13 been left out in the present Act. It is submitted there V.L.R. 268, distinguished. The Court is reluctant is not sufficient evidence to show a levelling or paving to review a previous decision of its own which has within Section 408. not been made the subject of appeal to a higher Court, unless it can be shown that such decision is clearly wrong or was given improvidently and without full consideration of all the facts and legal arguments that ought to have been entertained when such decision was given. Appeal by defendants from a judgment of A'Beckett J., and motion to have the judgment for the plaintiff set aside, and judgment entered for the defendants. Mr. Isaacs and Mr. Mitchell-for the respondent. Defendants' present contention should have been raised as a point of law, Order XXV. r. 2. Whether the words levelled or paved include fixing the levels or not they had no right to touch this street. They have only statutory power, and they can only do work authorised by the Act of Parliament, and they are estopped from denying when a street is levelled or paved de facto that the level was not legally fixed. The facts sufficiently appear from the judgments. The evidence shows that the street was levelled and paved Dr. Madden, Mr. Hood, and Mr Hodges (for the previous to 1875, the date of the present Act, and appellants). This street is either within the provision under the old Acts a levelling de facto presumed a fixof Section 408 or it is not. If it is within it, we have ing of the levels, and all rights are saved by 506 Sect. 10. given the notices and done all that is necessary under The surveyor of a borough gave a contractor the level the Act before raising the street; if it is not within it, of a right-of-way off this street in 1874, and gave the as long as the Council's action is not wanton or un- present plaintiff the level for building purposes in 1885. reasonable, the Council is at large under the general This Act is the first which inserts the words "Subject powers given by Section 377, and the case of roads to the provisions of this Act" in the section giving previously levelled or paved must be a casus omissus, general power to the council, and the meaning of these which the Legislature intended to provide for, but did words is to be deduced from Part VII.-The guiding not. McDonald v. Shire of Coburg, 13 V. L. R. 268, principle is to be Permanency of Levels. Here, takdecides that where there is no provision to the con- ing into consideration all the facts, the levels were trary in the Act, either expressly or by implication for- actually fixed. Fixing levels means fixing them formbidding such an act, a municipality has authority to ally, or doing as they did here, and they cannot now raise the level of streets.-In the case of streets pre- be heard to say that they did not do it in the proper viously levelled or paved there is no such provision. Kil-way, and this gives a clue to the meaning of the words patrick v. Mayor of Prahran, 11 V. L. R. 203, no doubt "therefore levelled or paved"-Otherwise, since perconflicts with this view, but the decision in that case can sons in the position of the present plaintiff would have be supported on other grounds, but if it be taken to no right of notice, appeal, or compensation, a most mean that a street already levelled or paved is to be con- iniquitous result would ensue. A person should be clusively deemed to have had its levels fixed it is wrong. heard before he is injured. With regard to the cases At most levelling or paving de facto only gives rise to a referred to, Lavezzolo v. Mayor of Daylesford was depresumption that the levels have been fixed, and we cided under another Act, but if necessary can be rehave rebutted that presumption, and the judge has so viewed by this Court. Kensington Starch and Maizena found (Order 40 r. 10)--The onus of proof is then on Company v. The Mayor of Essendon turned on another the other side, and they should have submitted the point, and was considered in Kilpatrick v. Mayor of question to the jury, but the jury were only asked to Prahran, which is directly in plaintiff's favour, and being assess damages. Section 405 would apply to this case a decision of this Court should not be overruled. That according as certain facts were proved or not-Here case has not been affected by McDonald v. Shire of they were not proved. The evidence is only that a Coburg. This Court can if necessary draw inferences of portion of the road was made, and that two persons fact from the evidence if the findings of the jury are obtained the level of the footpath from the surveyor. not sufficient. Order LVIII. r. 4. "Fixing the level" is a term of art, and can only be done in the mode prescribed by the Act. Kensington Starch and Maizena Company v. Mayor of Essendon, 6 V.L.R. (L.) 265 ; 2 A.L.T. 35 is a direct decision in our favour. The right of appeal remained to the plaintiff, as the word "order" in Section 410 refers to the order made under Section 405. The council also gave the plaintiff notice, though they were not bound to do so. The HIGINBOTHAM C. J. This case comes before the court on a motion that an order of the learned judge directing judgment to be entered for the plaintiff for £269 and costs should be reversed and judgment entered for the defendants. The only question that had been brought before the Court on this motion was an application to review a decision given by this Court in the case of Kilpatrick v. The Mayor of Prahran The plaintiff complains in this case that he was pos ground for that suggestion. M'Donald's case related to a municipality in a different position to that in Kilpatrick's case, and also of the municipality which did the acts complained of in this case. Both of these municipalities were boroughs, whereas in M'Donald's case the action was brought against a shire, and the decision of the Court in M'Donald's case was founded upon the distinction between the authorities given by Parliament to shires and boroughs respectively. It was true that in the observations of some of the members of the Court who delivered judgment on that occasion reference was made by more than one member of the Court to the general principles of the law as they applied to boroughs and shires. But the ground on which the decision was given related to shires only, and I do not think there is anything to be found in the observations of any of the judges in connection with the powers given to boroughs that is inconsistent with or at variance with the decision in Kilpatrick's case. That decision was that under the existing law-the Local Government Act 1874-streets within a borough which had been already of subdivision 7 of part 16 of the statute to have had the levels fixed by the council. It followed as a consequence that wherever a street within a borough could be ascertained to have been in part levelled or paved according to the general meaning assigned to these words by the Court in that case, it was assumed to be the act of the council or its predecessors, and the act or series of acts by a council or its predecessors, in levelling or paving, was equivalent to fixing the level of the street and should be treated as equivalent to fixing the level; and by consequence and in accordance with section 408 of the Local Government Act the council was thereafter empowered to alter the level of the ground in such street only upon the condition of making full compensation to all persons interested in any property injuriously affected by such alteration and such compensation should be recovered by an action for damages. The review that we have been invited to make of the previous decision satisfies me, not merely that the decision in Kilpatrick's case was not given improvidently, or that it was clearly and unquestionably wrong, but it satisfies me that the decision was certainly right. The sections of this portion of the act are undoubtedly obscure, and very difficult to interpret, but the more carefully they are examined the more clearly will it appear that streets which had been levelled or paved were taken out of the power of the council to fix the levels thereafter, and they were taken out of the power of the council to alter the levels that existed in fact in these streets. This is an indirect consequence (for it was not expressly stated), which appears to me to follow from the provisions of that subdivision. The first fact which was adundantly plain in connection with this power to fix the level of streets was that by section 405 the power could not be exercised except subject to a right of appeal that was afterwards provided for. What was that right of appeal? It was provided that one month at least before the council proceeded to fix the level of any street it was bound sessed of land at the junction of Inglis-street and Evansstreet in the Borough of Port Melbourne, and that these streets previous to 1874 were levelled and paved within the meaning of the Local Government Act 1874 and that they continued levelled and paved till 1886, when the defendants raised the level of Inglis-street within certain points to a height exceeding the previous level of the street. The defendants, in addition to other pleas, alleged that the level of neither of these streets had been theretofore fixed, nor were the streets levelled or paved; but that the council of the municipality, acting under the provisions of the Local Government Act 1874, in 1886 fixed the levels, and after the levels had been so fixed, the street was altered in conformity with the level so fixed, and that this constituted the grievance complained of. At the trial evidence was given for the plaintiff in support of his claim, and the defendants' counsel stated that they would not give evidence to rebut it. But they raised before the judge, as a point of law, that they were entitled to a direction that a verdict should be entered for the defendants, on the ground that the council had an undoubted right to raise or lower the street, accord-levelled or paved were taken by the indirect operation ing to the decision of the Court in M'Donald v. the Shire of Coburg, which was subsequent to the decision in Kilpatrick v. the Mayor of Prahran. The learned judge in giving his judgment, said that it had been proved that the street had been paved and kerbed before the raising complained of. There was nothing to show that the level had been formally fixed under the Local Government Act or under any other act, But the learned judge proceeded to state that he felt himself bound by the decision in Kilpatrick v. the Mayor of Prahran, and accordingly decided against the contention of the defendants, and gave judgment for the plaintiff. It was said, and we assume it to be correct, that the judge did not find that the levels had been formally fixed before the acts complained of were done, but that in point of fact it had been shown by the evidence that the levels had not been formally fixed. The application to this Court is to review a former decision of the Court which has not been made the subject of appeal to a higher Court. The Court is reluctant to entertain an application of this kind unless in cases where it could be shown that the previous decision had been given improvidently, or that the Court had overlooked certain facts or arguments, or that the decision was unquestionably wrong. In other cases the Court would refuse to entertain an application to overrule a decision given by itself. They had to consider, therefore, on this application the question whether the decision in Kilpatrick's case was clearly wrong, was clearly erroneous, whether they had reason to believe it was given improvidently and without full and due consideration of all the facts and the legal views which ought to have been entertained by the Court when it gave its decision. This motion was founded on the suggestion that the more recent case of M'Donald v. The Shire of Coburg was in conflict with the principles which the Court recognised and acted upon in the earlier case of Kilpatrick v. The Mayor of Prahran. I must say that there was no It to publish notice by advertisement, to be inserted in found that, as a fact, it had been paved and levelled some newspaper circulating in the neighborhood, that for a period antecedent to the coming into operation it intended to fix the level of a street, and also to pub- of the Act in 1874, and it continued levelled and lish not merely notice of its intention, but notice of paved from that time to the date of the acts complained the name and situation of the street the level whereof of. Therefore, the council had no power to fix the was to be fixed, and also provide a plan of the intended level and to alter the street to the level so fixed. work which was directed by section 405 to be done was a question that the judge might have been called under the direction of the surveyor of the municipality on to submit to the jury, whether the street had been The act fixing the level had, therefore, to indicate the levelled or paved, but the defendants at the close of consequences that would follow from it, and that were the plaintiff's case, abandoned that right, and raised a intended to follow from the fixing of the level. It was question of law, and of law only. The Court was, also provided that persons who might be affected by therefore, relieved from any difficulty arising from this, the works that were intended to follow the fixing of the that it was not found by the jury to be a fact that the level could appeal to the municipal council at a time street had been levelled or paved. The learned judge and place to be stated in the notice, which was also to to whom the matter was left had also stated that he state the time when and the place where the plan of was of opinion that the street had been paved and the intended works could be seen. The notice was kerbed. And either levelling or paving would do. the first intimation that persons likely to be injured by When it was found by jury or by a judge, who was fixing the level received. The council was to meet at empowered to make the finding, as a fact that the the time and place stated in the notice, and was there street was levelled or paved, it followed as a legal to receive and consider any objections against the in- inference from the fact so found that the level had tended work. All persons interested therein, or likely been substantially fixed, and that the council had no to be aggrieved thereby, were entitled to be heard by power to alter it without making compensation. I am the council at such meeting. Then, and then only, of opinion that the decision in Kilpatrick v. The could the council make an order. The levels could | Mayor of Prahran was correct and that the motion not be fixed under section 408 until the lapse of at should be dismissed with costs. least one month from the publication of the notice, and within that month the council was to meet and hear objections, and therefore the council might, on further consideration, either abandon the work, or make such order as in its discretion it pleased. And any person aggrieved by its order might, within 14 days after it was made, appeal against the determination of the council to the Court of General Sessions for the district. If the appeal was successful the council would be prohibited from making an order to fix the level, or from carrying out the works. From both those modes of relief from anticipated injury streets that have been theretofore levelled or paved were expressly excepted by section 408. The persons interested in streets that were levelled or paved were not to have notice. Notice was not to be given in respect to these streets, and persons aggrieved could not be heard, and could not appeal against the decision. It followed necessarily from this exception of streets that had been levelled or paved from the operation of sections 408, 409, and 410, giving the right to apply to the council first, and to the General Sessions afterwards; but it was the intention of the Legislature in regard to streets levelled or paved that the power as to fixing levels did not apply to them. They constituted an exception by necessary intendment from the general powers given to boroughs by section 405 to fix the level of every street not already fixed. The legal effect of this would be that as the council could not fix the level of a street already levelled or paved it could not alter the level of such street. That conclusion, so arrived at on the consideration of the sections, corresponded accurately with the decision in Kilpatrick's case, where level was held to mean level in fact. In the present case the street had been levelled and paved. The judge had WILLIAMS, J.--I regret that I have not the same amount of confidence in the correctness of our decision as the Chief Justice and Mr Justice Holroyd have. I entertain considerable doubt as to the correctness of the decision, and I think I should state what those doubts are. I do not differ from the decision of the Court in Kilpatrick v. The Mayor of Prahran, for this reason, that I think it is right to act upon the principle that had been laid down by the Court that we ought not to overrule previous decisions of the Full Court unless we are satisfied that those decisions were clearly wrong. I am not satisfied that the decision of the Court in Kilpatrick's case was clearly wrong, nor that the decision of the Court in this case is clearly wrong. Before expressing my doubts it is necessary to state shortly the position of this case-the position which the parties took up, and the position which the judge took up. The plaintiff sued the defendants evidently under section 413 of the Local Government Act. He said in effect to them, "You proceeded to fix the level of the street in question a second time, and under section 413 you cannot do that, so as to alter the level, or for the purpose of altering the level, without making compensation." To sustain his case the plaintiff had to prove that the level of the street had previously been fixed, and that the street had been raised beyond that level. He attempted to prove a second alternative as to the alteration of the level of the road by endeavoring to bring himself within the decision in Kilpatrick's case, and proving that the street had been previously levelled or paved. He had to prove a regular fixing of the level in accordance with provisions of subdivision 7 of part 16 of the act, or what he contended on the authority of Kilpatrick's case was equivalent to an actual fixing of the level, namely, that the street had been previously levelled or paved by the council. To support that proof he proved | contention that once it was proved that the street had these facts only, and it was very necessary to bear this been levelled and paved de facto, it might be argued in mind in considering the case. He proved that the that was evidence from which a jury might infer street had been metalled, that the footpath had been that the level of the street had been previously fixed kerbed, and the channels at the sides had been formed. by the council, but even taking that view the plaintiff That was all he proved. He did not prove that this would not be entitled to succeed, because the queshad been done over the whole street, but only over a tion had never been sent to a jury or found by the portion of it. It was contended that these facts proved judge. It was a question of fact on that view whether the allegation, which according to his view of the law the level of the street had been fixed or not: but it he was bound to prove, namely, that the street had had not been sent to the jury, and that being so, it been previously levelled or paved. At the close of the was doubtful whether there should not, properly speakplaintiff's case the defendants' counsel stated that they ing, be a new trial. The last doubt is that it was poswere not in a position to prove that the acts were not sible that the Legislature, in framing this act, intended done, or that the street was not metalled, kerbed, or to provide specially for the cases of streets, heretofore channelled over this portion. But they said, admitting levelled or paved, and therefore excepted them from these facts, if the facts constituted a levelling or the operation of the other sections. If that were so, paving within the act, then the street was levelled it was a casus omissus, as they had not made provision or paved. Lat they did not admit that it was levelled for those streets. or paved in such a way as to constitute the fixing HOLROYD J. I can quite understand the doubts of a level. That was the position they took up, and expressed by Mr. Justice Williams, for no more difficult I cannot read the judgment of the learned judge in act to interpret ever came under my notice than the any other way. He said in effect this; if these facts Local Government Act. It was full of inconsistencies, constituted levelling or paving within the statute, or full of difficulties of language, and conflict of arrangewithin the decision in Kilpatrick's case, then this street ment. It was impossible to construe some sections was levelled or paved; but there was no fixing of the without doing violence to the language of others. But level whatever. If there was any doubt about it a in considering it they must do the least violence they reference to the learned judge would set it right. He could, and give, as far as possible, effect to the main found as a fact that there was no fixing of the level purposes of the statute. In section 405, as it appears within the statute, but if on the facts that were ad- to me, the right of appeal was correlative with the mitted by the counsel for the defendants and proved right to fix the levels of the street, and the by the plaintiff, there was a levelling or paving, then levels of the street were to be fixed under secin that sense and in no other, was there a levelling or tion 405, with a view to the work to be presently done paving. That being the position of the case I will upon the street in accordance with the levels so fixed, proceed to state my doubts. The first doubt is for the notice of intention to fix the levels must refer whether the initial words in section 377 of the statute, to the plan of the intended works. Under section 410 "subject to the provisions of this act," did not relate persons aggrieved by the order of the council relating to section 413. Subject to the provisions of the act, to the levels had conferred upon them the right to apthe council might raise or lower the ground or soil of peal. And this right to appeal was given to these perany street. It was not improbable that reading that sons after their objections to the intended work had with section 413 it meant that unless the council had been heard before the council. The persons whose previously fixed the level of the street in accordance objections might be heard by the council were the with the provisions of any law for the time being in persons to whom notice of the intention of the council force, they could raise or lower the ground or soil of to fix the levels and of the plan was to be given. any street or row. They could do what they please that were followed out-if notice of intention to fix as long as they were not guilty of negligence. But the level in a street that had been heretofore levelled if they had fixed the level under the provisions of the or paved had been given the levelling of that street law then they could only raise or lower the ground could not be fixed under the provisions of sub-division or soil on paying compensation. My second doubt is 7 of part 16 of the statute. They had then to that I think it could be argued with great force that find a meaning of the expression "streets heretofore fixing the level of a street under this act was a term of levelled or paved" in section 405. I think that the art, and that the level was to be fixed by means and decision in Kilpatrick v. the Mayor of Prahran was methods more or less formal. I have very grave doubt right, and I adhere to what I said in M'Donald's case as to whether such acts as were proved in this case regarding that case. In Kilpatrick's case levelling or constituted a fixing of the level within the meaning of paving, as defined there, would certainly not apply to the statute, and if such acts did not constitute fixing a patching or mending. It meant work of a permanent level within the statute, then the council had not fixed character. It did not mean indestructible work, but the level. The third doubt was whether if it were meant an indication of intention of the council proved up to the hilt that the street had been levelled that the street should be afterwards used at the level to or paved, or levelled and paved de facto, that would which it had been raised or lowered by paving and constitute evidence from which a jury might infer that levelling. When levelling or paving was proved in there had been a previous fixing of the level of that fact, it must be taken to imply that the street was It was possible that there might be force in the levelled or paved in the manner prescribed by the law. street. If to give any evidence concerning it. [Counsel with the consent of the Court postponed the application until after the argument on the main question in the case.] Ability means ability to remove the objection at any time and here the plaintiff offered all necessary time. Conditions such as these must be construed strictly against the vendor, Morley v. Cook, 2 Hare 106, McGregor v. Templeton, 8 V. L. R. (E) 495; 4 A. L. T, 9. Hardman v. Child, 28 Ch. D. 712. The council of the municipality would not be entitled | ment was not drawn up and we were not permitted to say when the levelling or paving, as defined in Kilpatrick's case, was proved that it had not been done legally and under the provisions of the act. It was quite clear that levelling or paving of a permanent character could not be done except in a manner that presupposed a fixing of the levels-perhaps not always in the manner prescribed by the act, but in a manner tantamount to what was prescribed as a formal fixing. As to the difficulties about the evidence in this case, he must hold that the judge found as a fact that this street had been levelled or paved in the sense in which the words had been used in Kilpatrick's case. If so found, that was sufficient. But if there was any doubt, there was ample evidence in the plaintiff's case from which such a deduction might be drawn. For these reasons, I concur with the judgment of the Court. Motion to set aside the judgment of the plaintiff for £269 dismissed with costs. Before Higinbotham C. J. Williams and Holroyd J. J. WOOLCOTT v. PEGGIE. 24th July 1888. Vendor and Purchaser.-Conditions of sale.—Power to Held: That this was the imposition of a new condition was entitled to rescind the sale at once. Semble (per Holroyd J.,) "ability" means ability at any Mr. Neighbour and Mr. Agg, (for the defendant) were not called upon. HIGINBOTHAM C.J.--We think the judgment appealed from was right and that the learned judge has placed the proper construction on the act of the parties. This was an action for specific performance of a contract of sale of land by the Defendant to the Plaintiff. Defendant pleaded in answer to that claim that he had brought himself within the terms of the 4th Condition of Sale before rescinding-That condition provides as follows: "That in case the purchaser shall within 14 days make any objection to or requisition on the title which the Vendor shili be unable or unwilling to remove (which right of election the Vendor absolutely reserves to himself) it shall be lawful for the Vendor (whether he shall have attempted to remove such objection or comply with such requisition or not) at any time to annul the sale and to repay to the purchaser &c. It is immaterial to consider defendant's unwillingness because it is conceded that he was not only willing but desirous of removing the objection to the title at the time of the correspondence between the parties. It is true that a condition of this kind is construed strictly against the Vendor and we think that the Vendor must clearly satisfy us that he was entitled to say that he was absolutely unable to remove the objection. We think the correspondence shows that he was absolutely unable before he rescinded the contract. It is important to notice that it is the purchaser who first insists on a speedy answer to the requisitions and he assigns a sufficient reason for so doing as he intended to pay in cash instead of bill. [His Honor here read the correspondence between the plaintiff and the Vendor's Solicitors]. At length the purchaser intimates his willingness to complete the conract and accept an indemnity if the Vendor will within 3 months remove the objection. That is the imposition of a new condition and for that 3 months delay he is to consent to give an indemnity. The Vendor was clearly at liberty to refuse that and he did so. The purchaser was then willing to grant further time but he never withdrew the condition of an indemnity. The Vendor then wrote that he will rescind the contract on a certain The objection which the defendant said he was un- day if the objection is not withdrawn and from the able to remove was a previous registered contract of sale first the Vendor said "Take the title as it stands or by a person purporting to be the defendants agent. give me time to remove the objection"---Purchaser The best proof that defendant was able to remove this never answered that demand for an election without is that he has recovered judgment in an action to have the imposition of a new condition which he never that contract removed from the register and it is now withdrew and in the absence of such an answer we proposed to put that judgment in evidence under order think the Vendor at that time was unable to comply LVIII. r. 4. At the trial before Webb J. the judg-with the Requisition and this though we have given Mr. Mitchell (with him Mr. Coldham,)for the plaintiff appellant: |