v. That such further or other relief may be given in the premises as to the Court may seem just. REPLY. 1. The respondents deny that (as alleged by the petitioners in paragraph 1 of the amended petition) the provision, sale and supply of electric light, heat and power to certain local authorities, local government bodies, corporations and persons was at any material time an appurtenance of the tramway undertaking or tramway system, and they say that the petitioners were not at any time authorised by an Order-in-Council made pursuant to The Electric Light and Power Act, 1896, to construct or use any electric lines or works or supply electricity, and were not at any material time authorised in law to provide, sell, or supply electric light, heat, and power as alleged in paragraph 1 of the amended petition. Save as in this amended reply otherwise stated the respondents do not admit any of the allegations contained in the amendment to paragraph 1 of the petition. 2. The respondents deny the allegations contained in paragraph 2 of the amended petition, and say that at the date of the acquisition of the Tramway by the Trust, and at all material times prior thereto, the petitioners failed and refused to perform and discharge the obligations imposed upon the petitioners by The Tramways Acts of 1882 to 1890, and The Brisbane Tramways Act of 1913, and in particular the obligations imposed on the petitioners by ss. 49 and 50 of The Tramways Acts, 1882 to 1890; and further say that if the petitioners made profits, then this was due to the fact that the petitioners so failed and refused to perform and discharge their statutory obligations as aforesaid. 3. The respondents admit the statements contained in paragraphs 3 and 4 of the amended petition. 4. The respondents admit that on the 1st January, 1923, the petitioners gave to the Trust and the Trust entered upon quiet possession of the Tramway with its appurtenances also of certain unauthorised extensions of the Tramway, including certain machinery and equipment for the provision and supply of electric light, heat, and power to certain local authorities, local government bodies, corporations and persons as aforesaid. The respondents admit that since such date the Trust has continued to use, occupy, and enjoy the Tramway with its appurtenances, and that they have used the said unauthorised extensions, machinery and equipment. Save as aforesaid the F.C. THE BRISBANE THE BRISBANE F.C. THE BRISBANE LTD. respondents deny all the allegations in paragraph 5 of the amended petition. 5. The respondents admit the statements contained in TRAMWAY TRUST. paragraphs 6 and 7 of the amended petition. THE BRISBANE 6. In reply to paragraph 8 of the said petition the respondents contend that 1. The basis or principle upon which the purchase money for the Tramway with its appurtenances shall be assessed shall be as follows: (a) The tribunal shall determine and award to the petitioners as the whole of the purchase money payable by the Trust for the Tramway with its appurtenances the value either to the Company or the Trust on the date of the proclamation taking the Tramway with its appurtenances made under subsec. 1 of s. 16 of The Brisbane Tramways Trust Act of 1922 of the physical property constituting the Tramway with its appurtenances suitable and used for working the same (excluding all lands, works and property whatsoever owned or used by the petitioners in connection exclusively with the manufacturing, sale or supply by the petitioners of electric light, heat or power, and all unauthorised extensions and additions to the said Tramway with its appurtenances, hereinafter collectively referred to as "the excluded property "); and that such value of such physical property shall be measured by what it would on such date cost either the petitioners or the Trust to construct and establish the Tramway as a structure, and to purchase all cars and appliances suitable and used for working the said if such tramway cars and appliances did not then exist, after taking into account a proper deduction in respect of the depreciation of the Tramway as a structure and of the cars and appliances to their condition on such date: and that the tribunal in assessing the purchase money under this sub-paragraph may take into consideration the actual cost to the petitioners of the construction, establishment and purchase of such tramway cars and appliances other than the excluded property, and the depreciation thereof, by comparing the condition at the date of acquisition with the condition when newly constructed; or alternatively, F.C. LTD. v. THE BRISBANE (b) The tribunal shall determine and award to the petitioners as the whole of the purchase money payable by the TRAMWAYS CO. Trust for the Tramway with its appurtenances the actual cost to the petitioners of the construction, establishment TRAMWAY TRUST. and purchase of the physical property constituting the said Tramway, cars, and appliances other than the excluded property, less a proper deduction in respect of the depreciation of the Tramway, cars, and appliances to their condition on such date: Provided that the purchase money shall not in either or any case be greater than the sum which on such date a person desiring to buy the said Tramway, considered merely as a structure, and all cars and appliances suitable and used for working the same (other than the excluded property), would have had to pay for them to a vendor willing to sell for a fair price, but not desirous to sell, and shall not in any case be less than the removal or scrap or junk value (on such date) of the said Tramway, cars and appliances. The respondents further submit and contend 1 (A.) That under the provisions of The Brisbane Tramways Act of 1913 and the agreements validated by and made in pursuence of the said Act, the said Tramway with its appurtenances (including all duly authorised extensions. additions and modifications) was subject to compulsory purchase at any time after the 20th September, 1920, without any condition that the purchase money should include payment in respect of statutory right of use of the same or any part thereof for (which is denied) a period of fourteen years or for any other period; or alternatively, (B.) Was subject to such purchase upon condition that the purchase money should include payment of such sum (if any) as would represent the value of the statutory right of use of the duly authorised tramways which were completed less than fourteen years before the 1st January 1923, for the period between such date and the 4th April, 1925, and that in arriving at such amount such tramways should be regarded as separate tramways and not as part of the tramways completed more than fourteen years before the 1st January, 1923. M F.C. THE BRISBANE TRAMWAYS Co. LTD. v. THE BRISBANE (II) The purchase money is to be assessed by the tribunal provided by The Public Works Land Resumption Acts, 1906 to 1916. 7. The respondents acknowledge that the petitioners are TRAMWAY TRUST. entitled to be paid by the Trust the value of so much of the excluded property as was not at the date of acquisition unauthorised by law; but say that the basis or principle upon which or the Court or person by whom such value is to be assessed, cannot be determined by this petition. 8. The respondents agree that the Tramway with its appurtenances included certain extensions and additions to and modifications of the Tramway from time to time made by the petitioners otherwise than pursuant to the express terms of the relative Orders-in-Council. Save as aforesaid the respondents deny all the allegations contained in paragraph 10 of the amended petition. 9. Save as stated in paragraph 4 hereof the respondents deny the allegations in paragraph 11 of the amended petition. 10. The respondents admit the statements contained in paragraph 12 of the amended petition. Feez, K.C., Woolcock, and Henchman, for the Company. The arguments were based on the contentions set out in the petition as amended and the reply thereto. During the argument the following authorities were cited:In re Rush, Warre v. Rush (1); Central Control Board (Liquor Traffic) v. Cannon Brewery Co. Ltd. (2); Perth Gas Co. Ltd. v. City of Perth Corporation (3); Cripps on Compensation, 6th Ed., 131, 141; Edinburgh Street Tramways Co. v. Lord Provost, etc., of Edinburgh (4); Municipality of Brisbane v Brisbane Tramways Co. Ltd. (5); Hamilton Gas Co. Ltd. v. Hamilton Corporation (6); London Street Tramways Co. v. London County Council (7); National Waterworks Co. v. Kansas City (8); Bryce on Tramways and Light Railways, 2nd Ed., p. 135; Foster on Engineering and Valuation of Public Utilities, 2nd Ed., p. 39; Oldham, Ashton F.C. THE BRISBANE TRAMWAYS Cc. LTD. v. and Hyde Electric Tramways v. Ashton Corporation (1); National Telephone Co. v. Postmaster-General (2); In re Wood's Estate (3); Reg. v. Smith (4); Jenkins v. Great Central Railucy THE BRISBANE Co. (5); Clarke v. Bradlaugh (6); Manchester TRAMWAY TRUST. Bentley v. Manchester Railway Co. (7); Blackpool Corporation v. Starr Estate Co. (8); Bennett v. Minister for Public Works (N.S.W.) (9); Montgomery County v. Schuylkill Bridge Co., Pennsylvania (10); Municipality of Brisbane v. Metropolitan Tramway Co. Ltd. (11); Marshall v. South Staffordshire Tramways Co. (12); Gardner v. London, Chatham and Dover Railway Co. (13); Russell v. Minister for Lands (14); Seward v. Vera Cruz (15); Bcrker v. Edger (16); Commonwealth of Australia v. Hazeldell Ltd. (17); London, Deptford and Greenwich Tramucys Co. v. London County Council (18); Fraser v. City of Fraserville (19); Attorney-General v. De Keyser's Royal Hotel (20); Melbourne Tramucy and Omnibus Co. v. Tramway Board (21); Toronto Street Railway Co. v. Corporation of City of Toronto (22); London and Hetton Colleries v. Secretary of Mines (23); The Federated, etc., Association v. New South Wales, etc., Employers Association (24); Dudley Stourbridge Electric Trection Co. v. Corporation of Dudley (25); Harvard Law Review, Vol. 33, p. 1031; Robinson on Light Railways, 1903 Ed., p. 184; Corrie v. MacDermott (26); Adelaide Suburban Tremucy Co. v. The King (27); The Ontario Stete Reilway Co. (28); In re Kirkleatham Local Board, etc. (29); Grand Trunk Railway Co. of Canada v. The King (30); North Metropoliten Tremway Co. v. London County Council (31); Stevens v. General Steem Navigation Co. (32); Boden v. Smith (33); Maxwell on Statutes, 6th Ed., p. 723; Hayes on Public Utilities, pp. 27 and 28; Woodfall, (1) [1921] 1 K. B. 269; [1921] 3 K.B. 511. (2) 1913, 29 T.L.R. 190. 624. (3) 1886, 31 Ch. D. 607. (4) 1873, L.R. 8 Q.B. 146. (5) [1912] 1 K.B. I. (6) 1881, 8 Q.B.D. 63. (7) [1891] 3 Ch. 222. (8) [1922] 1 A.C. 27. (9) 1908. 7 C.L.R. 372. (10) 20 Atlantic R. 407. 11) 1891, 4 Q.L.J. 110. 12) [1895] 2 Ch. 36. 13) 1866-7, L.R. 2 Ch. 201. 14) 1898 17 N.Z.L.R. 241. 15) 1884, 10 A.C. 59, at p. 68. 16) [1898] A.C. 748. (17) 1918, 25 C.L.R. 552; [1921] 2 A.C. 373. (18) [1905] 1 K.B. 323. (19) [1917] A.C. 194. (20) [1920] A.C. 503. (21) [1919] A.C. 667. (22) [1893] A.C. 511. (23) 1922, 39 T.L.R. 12. (24) 1906, 4 C.L.R. 488, at p. 519. (25) 1907, 96 L.T. 340; 97 L.T. 556. (27) 1905, S.A.L.R. 39 (28) 1893, 22 Ontario L.R. 374. (29) [1893] 1 Q.B. 375. (30) [1923] A.C. 151. (31) 1895, 72 L.T. 586. (32) 1903, 88 L.T. 542. (33) 1849, 18 L.J.C.P. 121. |