Sanderson v Minister for Lands (NSW) [1924] HCA 8; (1924) 33 CLR 588 (28 March 1924)

HIGH COURT OF AUSTRALIA

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

H C of A

On appeal from the Supreme Court of New South Wales.

28 March 1924

Knox C.J., Isaacs, Gavan Duffy, Rich and Starke JJ.

Windeyer K.C. (with him Worthington), for the appellant.

Canaway K.C. and Hanbury Davies, for the respondent,

The following judgments were delivered:—

Knox C.J.

In this case I think that the decision of the Supreme Court was clearly right, and for the reasons given by Gordon J. The appeal should, therefore, be dismissed.

Isaacs J.

I also am of opinion that the appeal should be dismissed. The way in which the matter presents itself to me is this:—The Legislature made provision, in sec. 82 for instance, for improvement leases, and a lease when granted binds the lessee in respect of certain land and certain obligations. The Crown also is bound by the lease. When we come to sec. 193 it is part of the policy of the Legislature to enable improvement leases to be modified to a certain extent, that is, by enabling the holder to eliminate from that lease at a certain time and under certain conditions land for what is called a homestead selection. When that is done, the section, by sub-sec. 1, par (e), which I agree with Mr. Windeyer is the central provision for this case, says: "Upon confirmation the land" (that is, the land of the homestead selection) "shall be withdrawn from the lease"—to that extent the lease is altered—"but the lease shall otherwise continue in full force and effect." To the extent of withdrawing the homestead selection the lease is altered, but it is not to be altered otherwise. That is what I consider to be the meaning of sub-sec. 1 (e) of sec. 193. The operation of sec. 193 as to eliminating land from the lease has then been exhausted, and the section itself, by saying that the lease is to be otherwise unaltered, in effect declares that the lease is henceforth to be as it would be under sec. 82. The argument for the appellant would entirely alter that. It would not allow the lease to continue otherwise in full force and effect, but would enable it to be altered repeatedly by allowing other land to be eliminated. In my opinion the sub-section has not that effect, but the very opposite, and therefore the decision of the Supreme Court should be affirmed.

Gavan Duffy J.

I agree that the appeal should be dismissed.

Rich J.

I agree.

Starke J.

I agree.

Appeal dismissed with costs.

Solicitors for the appellant, Biddulph & Salenger.

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