Adelaide Development Company Pty Ltd v Pohlner [1933] HCA 13; (1933) 49 CLR 25 (21 April 1933)

Adelaide Development Company Proprietary Limited Plaintiff, Appellant; and Pohlner Defendant, Respondent.

This appeal raises two questions. The first is whether before the passing of the Town Planning Act 1929 S.A. the contract of sale which the appellant seeks to enforce was illegal and void because it involved a sale not in accordance with the provisions of the Town Planning and Development Act 1920 and the regulations thereunder. The second question is whether, if so, sec. 22 of the Town Planning Act 1929 operates retrospectively to validate it. Sec. 15 of Act No. 2104 was not in force at the time when the judgment under appeal was given and could not be relied upon (Victorian Stevedoring and General Contracting Co. Pty. Ltd. & Meakes v. Dignan[1]; Boulevard Heights Ltd. v. Veilleux[2]).

The facts relevant to the first question differ only in one respect from those upon which the decision turned in George v. Greater Adelaide Land Development Co.[3]. The contract was made after, not before, the Government Town Planner had finally certified his approval of the plan of subdivision under sec. 32 of the Town Planning and Development Act 1920. But it was made before the certificate of approval and the plan of subdivision had been deposited in the Lands Titles Registration Office pursuant to sec. 35. The logical consequence of the interpretation placed upon the statute in George's Case is that, unless this final step in the adoption of a plan of subdivision had been taken, the sale was not "in accordance with the provisions of" the Act and the Regulations, and, therefore, was prohibited by secs. 23 (c) and 44 (2). It follows that before the Act of 1929 came into force the contract was illegal and void.

The second question, whether the provisions of sec. 22 have given validity to the contract, depends upon the requirements of that section. Those requirements are that an application should have been made for approval of a plan of subdivision, that approval of the proposal shown on the plan should have been signified in a departmental form called "Letter Form A" and that the said plan of subdivision should then have been subsequently deposited. The occasion for this provision appears from the judgment of Murray C.J. in Greater Adelaide Land Development Co. v. George[4], particularly at p. 205. The difficulty in satisfying these conditions arises from the fact that the plan of subdivision deposited differs from the plan of subdivision approved by the communication in Letter Form A. The plan of subdivision, so approved, contained a scheme of subdivision which the Government Town Planner himself designed and suggested in substitution for that proposed by the subdividers in their application. The surveyor for the subdividers said in evidence that the Town Planner told him what he wanted and that he roughed it out; that they got Form A on this design; that they were not satisfied with the plan he had given them Form A on; and that, having seen their principals, they prepared a further plan. The plan was based upon the design of the Town Planner, but it contained variations which were considered improvements. The Town Planner gave his approval to this plan and afterwards certified it under sec. 32. This certificate together with the plan was deposited pursuant to sec. 35. The approval so given was not communicated in Letter Form A and no reliance was, or in our opinion should be, placed upon it as a fulfilment of the express requirement of sec. 22 of the Act of 1929 that the plan should have been approved in Letter Form A. In the Supreme Court, Napier J. decided that the plan certified and deposited was not the plan which had been approved by Letter Form A and that by the use of the expression "the said plan" sec. 22 required that it should be the same plan or design. This conclusion has been attacked, substantially in three ways.

First, it is said that the sense of the transaction between the Town Planner and the subdividers when their surveyor submitted the last plan was that the Town Planner agreed to its substitution for the plan he had already approved so that it should be considered the subject of the communication he had already sent in Letter Form A. The language of the statute unfortunately is too precise to admit of this solution of the difficulty. There must have been a signification by Letter Form A of the approval of the plan. Before the letter previously sent could be considered as redelivered in respect of the other plan, it would be necessary to infer that the Town Planner expressly or tacitly communicated a definite intention that the letter should receive this new operation. It is not enough that the Town Planner manifested an intention that the new plan should be the approved design. He must also have shown an intention to adapt his former Letter Form A to the new plan and adopt it as an expression of the new approval (compare per Lord Sterndale M.R. in Koenigsblatt v. Sweet[5]). The evidence does not support such an inference.

Next, it is contended that the last plan was but a modification of the former, amounting to no more than the final step in a continuous evolution of the plan to be approved as a result of the application, a single proceeding. It may be conceded that modifications made by the Town Planner in a plan already approved by Letter Form A would not destroy the identity of the plan, but, in this case, the applicants appear to have put forward a new proposal as a substitute for that approved. It is true that it was founded upon the design approved which it greatly resembled. But the course taken really amounted to re-opening the application by putting forward a fresh plan.

Thirdly, it was maintained that in fact the last plan departed so little from that which received approval expressed in Form A that it should be considered the same. It was urged that in matters which would be esteemed of most importance in the administration of the statute there was no variation between the plans. The question of substantial identity must depend largely upon the nature of the statutory requirement. It appears to us that, when in validating sales made upon a plan before it is deposited, the legislation requires fulfilment of the condition that the "said" plan shall have been approved and deposited, it must be understood as concerning itself (inter alia) with the identity of allotments both in reference to situation and to dimensions. In this respect the two plans are not, in our opinion, substantially identical. For these reasons we find it impossible to say that the plan approved in Letter Form A was certified and deposited.

This was an action for breach of contract made between the appellant and the respondent for the sale and purchase of certain allotments of land. The only defence that concerns us is a plea of illegality based on the provisions of the Town Planning and Development Act 1920 of South Australia. By sec. 23 of that Act, it was provided that it should not be lawful for any person to offer for sale or to sell or to convey, transfer or otherwise dispose of any existing allotment or parcel of land except in accordance with the provisions of the Act. The Act and the Regulations made under it require the preparation of a plan of subdivision, a certificate of approval, and the deposit by the owner of the certificate and copies of the plan in the Lands Titles Registration Office or in the General Registry Office. In George v. Greater Adelaide Land Development Co.[6] this Court held unlawful a sale entered into before the certificate of approval was obtained. The only distinction in this case is that the sale was made after a certificate of approval had been given but before the plan was deposited in accordance with the provisions of the Act. But the deposit of the plan is as much a requirement of the Act as obtaining a certificate of approval. George's Case is, therefore, decisive in principle of this case, unless the Town Planning Act of 1929, sec. 22, has validated the sale now in question. It provides: "In any case where—(a) an application was made to the Government Town Planner under the Town Planning and Development Act, 1920, for approval of a plan of subdivision under that Act; and (b) the Government Town Planner signified to the applicant or his agent by a letter in the Form known as Letter Form A that approval had been given to the proposal for the subdivision shown in the plan; and (c) the said plan of subdivision was subsequently deposited in the Lands Titles Registration Office or the General Registry Office, the said plan shall be deemed for all purposes to have been so deposited at the time when the said letter in the Letter Form A was received by the applicant or his agent, and all transactions after that time relating to any land shown on the said plan shall be, and be deemed to have been, of the same force and validity as if the plan had been deposited at that time."

In the present case, a plan of subdivision was prepared, but the Town Planner re-arranged the design, and a further plan (Ex. A6) was prepared, in respect of which a certificate in Letter Form A was given. The Town Planner prepared yet another design, and another plan (Ex. A7) was prepared. This plan was approved, and a certificate of approval was issued on 5th May 1927, and the plan deposited on 18th July 1927. The contract of sale was made on 27th June 1927 before this plan A7 was deposited. The plans A6 and A7 represent a subdivision of the same parcel of land, but the lay-out, the number of allotments, and their dimensions differ materially. It is, as Napier J. said, not a case of mere additions, corrections or immaterial variations: the plans are not identical, nor even substantially so. Consequently, the approval in Letter Form A given to plan A6 cannot be applied to plan A7: it is not "the said plan of subdivision" to which approval had been given in Letter Form A.

I have some difficulty, however, about the certificate of approval given to plan A7 on 5th May 1927 and the letter accompanying it. The contract of sale, it will be remembered, was made on 27th June 1927, and therefore after this certificate of approval. Letter Form A is in the following form:—"South Australia, Department of Town Planning, Education Building, Adelaide........19.. No......... Dear Sir,—With reference to your application dated..........I desire to inform you that approval has been given to the above proposal for new subdivision situated at........being........ Will you therefore submit to this office two copies of the completed survey of the proposed subdivision in the form of mounted certified drawings which will be reconciled with the original proposal and if found to conform with same passed and be returned to the Registrar-General of Deeds. The certificate of approval authorizing the deposit of the plan in the Lands Titles Office or the General Registry Office will then be forwarded to you. Enclosure: the original cloth tracing of the proposed subdivision is returned herewith. Yours faithfully........Government Town Planner." The letter of 5th May is as follows:—"Dear Sirs,—A/1382 Warradale Park South S/D.—(1) With reference to the two certified mounted drawings in connection application dated 30/7/26 for subdivision situated at Oaklands being Section 182 Hundred of Noarlunga Volume 11 Folio 46 I desire to inform you that these have been reconciled and approval has been given for the plans to be deposited in the Lands Titles Office. (2) The certificate of approval No. 862 is forwarded herewith and certificate must be lodged in the Lands Titles Office to accompany plans for deposit which plans have been forwarded direct to the Lands Titles Office from this Department. Yours faithfully..............Government Town Planner." The certificate forwarded with this letter was, according to the evidence of the Town Planner, H. C. Day, in the Form No. 2 of the Regulations. It certified that plan A7 had been approved by the Government Town Planner in accordance with sec. 32 of the Act of 1920.

If the words of the validating Act are clear, we cannot enter upon any refined consideration of the question whether they carry out the object of the statute, but at the same time the manifest intention of the Act ought not to be defeated by too literal an adhesion to its precise language. Is it the approval of the plan that sec. 22 of the Act of 1929 requires for validating purposes, or approval in the precise form of Letter Form A? The mischief to be remedied was the invalidation of contracts though approval had been given by the Town Planner to plans of subdivision. In my opinion, it is the approval that is essential, but it may be in a form known as Letter Form A. On the whole, therefore, sec. 22, as applied to the present case, prescribes that plan A7 shall be deemed for all purposes to have been deposited at the time when the letter and certificate of 5th May were received by the applicant, which was before the date of the contract. We were referred to another Act, No. 2104 of 1932, sec. 15, but that Act was passed subsequently to the judgment appealed against and consequently does not affect it.

This is an appeal, pursuant to special leave, from the judgment of the Supreme Court of South Australia (Napier J.) which, upon appeal, gave effect to a defence of illegality in an action brought by the appellant against the respondent in the Local Court of Adelaide.

The alleged illegality consisted in a non-compliance by the present appellant with sec. 23 (c) of the Town Planning and Development Act 1920, which makes it unlawful to sell or offer for sale any existing allotment otherwise than in accordance with the provisions of that Act.

In my opinion, this part of the case is determined for us by the ratio decidendi of George v. Greater Adelaide Land Development Co.[7]. In that case a final certificate of approval, under reg. 44, of the plan of subdivision had not been obtained before the signing of the contract of sale; and that regulation under the Act has been fulfilled in the present instance. But sec. 35 requires that there shall be a deposit in the Lands Titles Office of the certificate of approval and of the plan approved, and the contract sued on by the present appellant was entered into before it had complied with sec. 35. The last-mentioned section is perhaps the predominant provision of the whole Act, and all the other requirements are ancillary to it and lead up to it. Upon the reasoning of George's Case[8], therefore, the non-compliance with sec. 35 taints the contract with illegality.

As a consequence, the appellant is forced to rely upon the special validating enactment contained in sec. 22 of the Town Planning Act 1929. That section provides that where three prescribed conditions have been fulfilled, a certain plan of subdivision is to be deemed deposited at the time when Letter Form A was received by the person applying to the Town Planner for approval.

Now I gather that in cases like George's Case[9], Letter Form A had been received by the applicant before the contract of sale was made; that there was complete identity between the plan provisionally approved in Letter Form A, and the plan finally approved and deposited. Those who promoted the passage of sec. 22 through the Legislature therefore were not concerned with protecting applicants who either had not received Letter Form A at all, or those who had received it in respect of a plan differing from that finally approved and deposited. It is not surprising therefore to find that the Legislature, seeking to accord protection to a particular applicant, has used words appropriate to such applicant, but not readily yielding to an interpretation which will also accord protection to another equally well meaning and equally impatient land "developer." That is why, in my opinion, the appellant, although not making the contract until after final approval had been obtained, is unable to rely upon such final approval. Final, as distinct from provisional, approval could not assist the company interested in the previous litigation precisely because it sold before final approval. In my opinion the words of sec. 22, making the time of the receipt of a particular letter (that in Letter Form A) the time to which all subsequent transactions are related back, make it necessary to show that such a letter was actually received.

I agree with Napier J. that the third condition of sec. 22, dealing with the deposit of the plan of subdivision after receipt of Letter Form A, was not fulfilled by the present applicant. There was a deposit but it was not of "the said plan of subdivision." A perusal of the plan in respect of which Letter Form A was received, and the plan finally approved and deposited, reveals substantial and material variations and alterations. Indeed, it clearly appears from the evidence that the appellant itself was dissatisfied with and rejected the plan on which Letter Form A had proceeded. Thus the witness J. B. Calder said—

This evidence also destroys the suggestion made, of a progressive evolving of a plan by the Town Planner and the appellant jointly. There was a complete departure from the A6 plan and a fresh start was made. The position, size, and number of the allotments on the plan A6 differ materially from those appearing on the plan finally approved and deposited.

The appellant therefore does not bring itself within the validating section, which was, in my opinion, intended to cover very different circumstances from the present. It appeared, however, on the hearing before us, that the appellant has been instrumental in promoting and carrying through Parliament another validating enactment to meet its own particular difficulties. I would have agreed, in such circumstances, to rescind special leave to appeal, because the main ground upon which it was granted was that the present appeal would test many other contracts relating to the same subdivision. Counsel for the appellant stated that he did not think that the enactment passed (sec. 15 of Act No. 2104 of 1932) can do the work it was designed to do. Perhaps he is right.

[1] [1931] HCA 34; (1931) 46 C.L.R. 73.

[2] (1915) 52 Can. S.C.R. 185.

[3] [1929] HCA 40; (1929) 43 C.L.R. 91.

[4] (1929) S.A.S.R. 199.

[5] (1923) 2 Ch. 314, at p. 327.

[6] [1929] HCA 40; (1929) 43 C.L.R. 91.

[7] [1929] HCA 40; (1929) 43 C.L.R. 91.

[8] [1929] HCA 40; (1929) 43 C.L.R. 91.

[9] [1929] HCA 40; (1929) 43 C.L.R. 91.

High Court of Australia

Adelaide Development Company Pty Ltd v Pohlner [1933] HCA 13; (1933) 49 CLR 25 (21 April 1933)

HIGH COURT OF AUSTRALIA