Date of this Version


Document Type

Journal Article

Publication Details

Forder, J. (1997). Taming the unruly horse! Contractual illegality and public policy: Fitzgerald v FJ Leonhardt Pty Ltd. High court review, 3, 17 pp.



FJ Leonhardt Pty Ltd (the "driller") sued for payment under a contract to drill for water. The contract had been performed without all the necessary permits. This was through no fault of the driller - he had complied with the requirements as implemented by the Water Authority at the time. While the contract was perfectly legal when formed, the question is whether it is to be rendered unenforceable because its performance unwittingly breached a statutory requirement of obtaining a prior permit. There is a line of authority which suggests that even where a contract is illegal as performed, it can nevertheless be enforced by the "innocent" party, i.e. the person not guilty of breaching the statute (Holidaywise Koala Pty Ltd v Queenslodge Pty Ltd [1977] VR 164; TP Rich Investments Pty Ltd v Calderon [1964] NSWR 709; Anderson v Daniel [1924] 1 KB 138; Marles v Philip Trant & Sons Ltd [1954] 1 QB 29). The present case is not covered by this line of authority, since both parties were held to be guilty of an offence.

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