Everingham v Minister for Lands (NSW) [1916] HCA 19; (1916) 21 CLR 269 (30 March 1916)

HIGH COURT OF AUSTRALIA

Everingham Appellant; and The Minister for Lands (New South Wales) Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

30 March 1916

Griffith C.J., Barton, Gavan Duffy and Rich JJ.

Rolin K.C. (with him Coffey), for the appellant.

Canaway K.C. (with him Hanbury Davies), for the respondent.

Griffith C.J.

With all respect to the learned Judges of the Supreme Court who formed the majority, this case seems to me to be free from any substantial doubt. The system of the Crown Lands Acts of New South Wales is too well known to require detailed explanation. With regard to conditional purchases the scheme is that a person may apply for and take up vacant Crown land under a title which is called "conditional purchase." The tenure is conditional for ten years, during which the condition of residence must be performed together with making certain improvements. The purchase money is payable by instalments. The holder of such a conditional purchase, which is generally called "an original conditional purchase," may, if other Crown land is available adjoining the first purchase, apply for an additional conditional purchase, which, if granted, becomes an accretion to the original conditional purchase, and the obligations with respect to both are consolidated. But the right of taking up land by way of additional conditional purchase was limited to vacant Crown land. Then, in 1903, the Legislature were minded to remove that limitation. It was said:—"If a piece of land adjoining an original conditional purchase is held by another man also as an original conditional purchase, and one of them is willing to go out so that the two may be consolidated, why should they not be consolidated?" The law was then altered by an enactment which now forms the first paragraph of sec. 267 of the Crown Lands Consolidation Act 1913, and which, leaving out immaterial words, provides that "The holder of any conditional purchase ... may ... acquire by transfer one or more conditional purchases ... as additional purchases, ... and in any such case the conditions of residence and improvement attaching to the original and additional holdings may be performed on any one of such holdings." Such a transfer was, however, subject to the approval of the Local Land Board and the Minister. The Legislature therefore put the newly acquired conditional purchase which had for a time been held by another person as an original conditional purchase, on the same footing as an additional conditional purchase acquired by taking up vacant Crown land. In other words, the two holdings were to be treated as a consolidated or single holding on any part of which the conditions of residence and improvement may be performed. Upon that language I should not myself have thought there was any reason for doubt. The Legislature treated the land so acquired as an ordinary additional conditional purchase.

Later, in 1908, the Legislature imposed certain restrictions upon dealings with certain holdings, but the restrictions were limited to holdings applied for after 1st February 1909. One of the restrictions imposed, which now appears in sec. 272 of the consolidated Act, was that the holder of an original conditional purchase applied for after 1st February 1909, or of an additional holding held in virtue of any such holding, should not be at liberty to transfer it except subject to certain restrictions, which are the restrictions now in question.

In 1912 a further enactment was made. Apparently someone had suggested a doubt whether an additional conditional purchase acquired by transfer of an original conditional purchase under the Act of 1903 was an additional purchase for all purposes, and to remove this doubt the provision which now appears at the end of sec. 267, that "whenever an original holding shall have been acquired under such provision and shall thereby have become attached to another original holding, such first-mentioned holding shall in all respects be deemed to be an additional to the holding to which it is so attached," was enacted. The fact that the provision now appears as part of sec. 267, to which it properly belongs, does not alter its meaning. The declaration is that when land is acquired in that particular way it shall in all respects be treated as additional to the original conditional purchase to which it is an accretion.

In the present case, the appellant before 1st February 1909 became the holder of an original conditional purchase, and thereupon became entitled to acquire an adjoining conditional purchase if land was available. On 5th December 1913 Cyrus Everingham transferred an original conditional purchase, which he had acquired after 1st February 1909, to the appellant. That transfer was approved by the Local Land Board and by the Minister, and thereupon the conditional purchase so acquired by the appellant lost its character of an original conditional purchase, and became an additional conditional purchase as an accretion to the appellant's original conditional purchase. Under those circumstances it does not come within sec. 272 at all, because the original conditional purchase by virtue of which it is now held was applied for before 1st February 1909.

There is, therefore, no question of conflict between the two sections. If there were any room for doubt before, the words "in all respects" removed it. The appellant is therefore the owner of an original conditional purchase applied for before 1st February 1909, attached to which is the additional conditional purchase in question. He has as much right to transfer the one as the other, for the acquired holding is not within sec. 272, which is the only law that can be suggested as forbidding the transfer.

A difficulty was suggested, arising from the fact that attached to Cyrus Everingham's original conditional purchase was a conditional lease. That lease was transferred to the appellant with Cyrus Everingham's purchase to which it was attached, and no point is raised in the case as to the validity of the transfer. It therefore forms part of the series of which the appellant's original conditional purchase acquired in 1908 is the root, and sec. 272 does not affect it any more than the other holding.

I desire to express my entire agreement with the judgment of Pring J., and the reasons which he gave for it.

Barton J.

I agree. I think it unnecessary to add anything to what has been said.

Gavan Duffy J.

I agree.

Rich J.

I agree.

Appeal allowed. Judgment appealed from discharged. Questions to be answered: (1) Yes; (2) No. Respondent to pay costs of special case and of appeal.

Solicitors for the appellant, McGuren & Pollack, Grafton, by Arthur J. McDonald & Kemmis.

Solicitor for the respondent, J. V. Tillett, Crown Solicitor for New South Wales.