Baird v Magripilis [1925] HCA 49

Baird v Magripilis [1925] HCA 49 - HCA 1925 case summary — Zoe

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Full Court had power to deal with the answer in such a way. Tam accepting the statement, in which counsel on both sides concur, well as the Full Court of Queensland, that that Court, sitting appeal, has been given such a power to interfere with the verdicts juries. The rule to which counsel referred us, however - Order LXX., r. 11 - is not the same as that adopted in England and in other - States on the subject. Under this Queensland rule the Court hax power to draw inferences of fact not inconsistent with the findings of the jury, but has no express power to set aside a finding, make its _ own finding, and enter judgment accordingly. In the case of Clark & Fauset v. Brisbane Municipality (1) in 1895, it was held that the Court had this latter power. Chubb J., with whom were Coop and Real JJ., based the power on the rule as then existing, XXXIX.,, r. 10, saying that this rule was not like the English mile which for a long time merely enabled the Court to draw inferences of fact, but only "if not inconsistent with the findings of the jury" (2). This rule, however, has reappeared as r. 26 of Order LXX. in the Rules of Court dated 10th October 1900, but with these very words inserted - there is power to draw inferences of fact "not inconsistent with the findings of the jury." The same words are found in Order LXX., r. 11. The decision in Clark & Fauset v. Brisbane Municipality was affirmed by the Judicial Committee in 1896. But, notwithstanding the marked change of language in the rules of 1900, Clark & Fauset's Case has been followed - by the Queensland Court under the rules of 1900 in Barns v. Queensland National Bank (3), and it was recognized as an authority in Russell Wilkins & Sons Ltd. v. Outridge Printing Co. (4) - although in the latter case the inference does not seem - to have been inconsistent with any finding of the jury. After all. this is a point of procedure, not affecting the merits; if we in this Court were to refuse to follow the procedure sanctioned by the Queensland Court and approved by both parties, the ouly alternative would be to send this unfortunate case back for a third trial, in which the jury would have to be directed to find the existence of the agreement, and we are not here to decide law as to which no question is raised.

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code for Crown lands ; and the Act of 1912 was a general Act did not amend or affect this code : Generalia specialibus non derog This principle is supported by the presumption that the Crown is not intended to be bound unless there be express words or necess implication to that effect. It is not at all probable that where leasing or sub-leasing to aliens is specifically dealt with in an specially relating to Crown lands, lands not yet alienated in simple, lands still under the administration of the Crown La Department, Parliament would apply the provision of a subsequé Act relating to such leasing or sub-leasing to aliens without amending or referring to the Land Act. As Mr. Hart pointed out, the provision as to a certificate in sec. 94 of the Land Act of 1910 are not at all the same as the provisions in the Act of 1912. Under the former A the dictation must be of not less than fifty words ; under the later Act there may be any number. The Minister, acting under one Ac may select one language ; acting under the other Act, he may select another. Clearly the Minister is fettered in the exercise of his discretion under the Land Act if he has to comply also with the Ac of 1912. Under the former Act the Minister has complete diseretio as to any proposed sub-lease, subject to the condition as to pe residence and as to aliens ; and as to aliens he is free unless by thi agreement some interest in the land passes to an alien. Under see, 94 (2) the lessee of a selection is empowered, with the approval of the Minister after the issue of his lease to sub-let the whole or part of his selection subject to certain conditions; and un r sub-sec. 2 (a) the sub-lessee shall be a person who is himself quali to become the lessee - '* Provided that in no case shall it be lawful for any lessee to sub-let the land, or any part thereof, to any alien 0! to enter into any partnership or agreement, either written or 0 with any alien, wnder which any interest in the land or any part tl shall pass to such alien, unless or until such alien has obtained in prescribed manner a certificate that he is able to read and W from dictation not less than fifty words in such language as Minister may direct." Moreover, by sub-sec. 3 as amended in 191

after the Leases to Aliens Restriction Act of 1912 - it is provided "Tf a lessee sub-lets the whole or any part of his selection othe than in accordance with this Act" (the Land Act of 1910) " the k

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be deemed to have committed a breach of condition." This amendment of 1916, made after the Act of 1912, ignores that Act and limits the duty of a lessee to that of acting " in accordance with his Act" (of 1910) - not in accordance with the Act of 1912. Now, in the Land Act of 1910, sec. 94, no agreement with an alien is forbidden unless it be an agreement which passes the land - * under which any interest in the land or any part thereof shall pass to such alien ;" and under this agreement no interest passes to an alien - it is to pass to the plaintifis when they cease to be aliens, and then only. If the plaintiffs remained aliens, they were to have no estate or interest in the land, even equitable. The common expression that after the contract the purchaser is the owner in equity does not apply to a conditional contract such as this (Counter v. Macpherson '(1)). No interest is to pass, under this agreement, to an alien, so long as he remains an alien. If there were a fire or other loss it _ would fall on the defendants - unless and until the alienage ceased ; if there were a windfall, it would enure to the benefit of the defendants

unless and until the alienage ceased. So far, it seems clear that there was no illegality in the agreement. But we must consider, with precision, the Leases to Aliens Restriction Act of 1912. By sec. 3 it is provided : - " It shall not be lawful to grant any lease or enter into any agreement whether oral or in writing for any lease of any parcel of land exceeding five acres in extent to or with any alien who has not first obtained in the prescribed manner a certificate that he is able to read and write from dictation words in such language as the Secretary for Public Lands may direct. Any such lease or agreement shall be null and void." But the word "Tease" has an expanded meaning by sec. 2: it includes any contract, agreement, scheme or device " (a) by which any estate or interest in land less than fee simple is created, or is agreed or is intended to be created." Therefore, although "lease" includes agreement for a lease, the agreement must be an agreement by which "any estate or interest is created, or is agreed or is intended to be ereated. What is made null and void by sec. 3, and a criminal offence by sec. 4, is (so far as material for the present purpose) an Agreement with any alien by which an estate or interest in land (less : (1) (1845) 5 Moo. P.C.C. 83.

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Therefore, even if this Act - the Leases to Aliens Restriction Act oa Be 1912 - did apply to Crown lands, to lands already regulated by the - Act as to Crown lands, it is very doubtful whether it would make this 7 agreement invalid. Secs. 2 and 3 of the more recent Act are very comprehensive, but it may be that they merely invalidate agreements | with aliens under which before the alienage ceases an estate or interest 4 is created or agreed or intended to be created, by the agreement, - This agreement did not purport to ** create,"'or"* agree " or " intend - to create" any estate or interest in land wnless and until the alienage should have ceased. The evil - such as it is - at which the Act is E aimed does not arise if alienage must necessarily cease before the - agreement become operative to give to the proposed lessee (or sub- lessee) any interest. Indeed the Full Court in their judgment have 7 relied on the words of the late Chief Justice, Sir Samuel Griffith, - in Hawker v. McLeod (1). In that case, under the New South Wales _ Crown Lands Act of 1884, every contract made before at or after the date of any application for a conditional purchase, with the intent or having the effect of enabling any person other than the applicant to acquire the land applied for, was made illegal. It was held by the Full Court (Griffith C.J., O'Connor J. and Isaacs J.) that a person ceased to be an "applicant" on confirmation of the application (September 1902); and that an agreement to lease to another in| 1906 for three years was valid. Grifith C.J., however, made some - deliberate remarks (2) which must, I suppose, be regarded as made - obiter - not a binding decision : - * Even assuming, however, that i any contract creating an interest in the land to take effect before - fulfilment of conditions is prohibited by sec. 121, I can see no - apparent reason why a contract to take effect after fulfilment should - be held to be prohibited. I accept for the purposes of this decision the view that, if the alienation of particular property is not allowed, it is impossible to create an equitable interest in it during the period of inhibition, but I do not think that such an inhibition extends to - invalidate a contract to confer such an interest after the period has -

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expired. Such a contract does not create a present interest in the land, and operates by way of contract only, just as if a man in possession of land with an option of purchase were to agree that in the event of the exercise of his option he would sell the land to another, with

or without a promise to exercise the option." This dictum has been quoted - as I understand with approval - _ by the Full Court of Queensland in In re McSharry ; McSharry v. Harding (1). But, from my point of view, it is not necessary for me
to decide this question as to the precise effect of the Act of 1912. _ I prefer to rest my judgment on the ground that the Act of 1912 does not apply to Crown lands. As for the objection based on the Sugar Works Act of 1911, the appellant relies on a regulation under that Act, dated 28th October _ 1915, providing as follows : - "'No person shall sell or lease or transfer or enter into an agreement to lease or sell or transfer to any other 5 person any land or any interest in land within any sugar works area unless he has previously received the consent in writing of the corporation" (that is, the Treasurer of Queensland (sec. 2) ) " to such lease or sale or transfer or agreement therefor. Any such lease or sale or transfer or agreement therefor made or entered into contrary to the provisions of this regulation shall be null and void for all purposes, and in addition any person who infringes this regulation shall be liable on summary conviction to a penalty not _ exceeding five pounds." In this regulation the term "lease" neludes any contract, agreement, scheme or device by which any estate or interest in land less than fee simple is created or is agreed or is intended to be created or relating to the leasing of land on the share system. . It will be noticed (1) that this regulation does not refer to aliens distinctively and that any agreement for lease &c. of land within a works area is null and void unless with the consent of the surer ; (2) that the definition of " lease *' follows almost verbatim e words of sec. 2 of the Leases to Aliens Restriction Act of 1912, as if e Sugar Works Act had nothing to do with that Act ; (3) that the eement, &c., must have previously - before the making - have received the consent. In this case, the Treasurer on 26th August

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defendant Joseph Francis Baird, continued in possession and spent large sums of money in grubbing, clearing and improving the land, and in planting it with sugar-cane. Now, was this arrangement conditional; that is, was it intended _ that it should not operate as an agreement but should be suspended until the happening of the stated event ? Or was the real intention of the parties, gathered from the documents and the surrounding circumstances, that the arrangement should operate and take effect as an agreement, but containing within itself the elements of its own discharge if the event stated did not happen within the time : prescribed ? (Cf. Wallis v. Littell (1); Anson on Contracts, 8th ed., p. 338; Fry on Specific Performance, 4th ed., p. 424, par. 982. and p. 398, par. 912; Counter v. Macpherson (2).) If the former is the proper implication from the documents, then, no doubt, the finding of the jury was correct, but otherwise it is wrong. The learned Judge at the trial took the latter view, and directed the jury that _ the documents constituted an agreement in law, and the Supreme Court on appeal took the same view. And in my opinion the learned Judges were right. The Court should look at the substance of the arrangement rather than its form. No doubt the parties desired to ' enter into some arrangement that would not contravene the Leases to Aliens Restrictions Act of Queensland. Nevertheless, there is. evidence of an intention to set up a real agreement. Thus, possession was given, and clauses were inserted in the documents imposing immediate duties and obligations upon the plaintiffs, notably those requiring them to grub, plough and plant not less than twenty acres before 18th January 1923, to take every precaution against fire, to leave spaces for fire-breaks, to keep the cultivated area free from burrs and other noxious weeds and within six months from the

date of the agreement to erect a dividing fence between the demised land and certain other lands. And further, the covering letter of Tth August and the undertaking of 2ist September stipulate -tespectively for the agreement "to be determined" and the under- taking to be null and void in the event of the plaintiffs' failure to
qualify. All this, to my mind, shows that the arrangement set forth the documents was intended to take effect as an agreement,

At a glance

Court

Decision date

Before

Source

Judgment (113 paragraphs)