Clissold v Perry [1904] HCA 12

Clissold v Perry [1904] HCA 12 - HCA 1904 case summary — Zoe

[54]

expression, are called " jumpers," that is the law and the policy of the law. In the case of Hx parte Winder, 6 Ch. D., 696, Hall, V.C., a Judge of large experience in conveyancing law, dealt with the nature of the interest of such persons as the present appellants, whose land has been taken by a constructing authority. In that case the land had been taken under a contract with the person who was in possession. The learned Vice-Chancellor said (at p. 700): "Tn this case the party who claims to have the fund paid out had acquired a title by possession of this property for nearly the time which would have operated as a bar to a claim by anybody else. Being in possession, the company negotiate with him for the pur- pose of taking the land ; thus treat him as being in possession, and he assumes himself to be a person who can make a title to the property. A contract is entered into based upon the assumption of his being the owner and capable of making a title to the fee- simple. Nobody can doubt for a moment, that, if this Act of Parliament had not been passed, he had a most valuable right and interest, which could have been sold in the market, although he had not yet the full statutory title." That description exactly fits the position of Clissold, when.the land was taken by the Government. The Act referred to by the Vice-Chancellor in the case cited was the Land Clauses Consolidation Act, 1845, upon which the New South Wales law on the subject is founded with some variations. Under the English Act of 1845, land may be resumed in either of two ways - by contract, or, if the parties s, then by a notice to treat given by the constructing authority to the other party. If no agreement results, the price is assessed under an elaborate system, some- times by a jury, sometimes by arbitration. The other party is required to execute a conveyance of his interest. If he can- not make a clear title, the constructing authority executes a deed poll, but before doing so must deposit in Court the amount agreed or assessed. In every case the constructing authority, in order to acquire a title, must pay to the claimant the agreed or assessed sum, or pay it into Court. By the New South Wales Act of 1880, now consolidated in the Public Works Act (1900), two methods are prescribed for taking land for public purposes. One is by contract with the owner. By the other method, different

[55]

notification, which is to be published in the Government Gazette and one or more newspapers, declaring that the land has been appropriated or resumed (see sec. 6). Then sec. 8 provides that upon such notification the land "shall forthwith, be vested in the Minister and his successors, &c., for an estate of inheritance, freed and discharged from all trusts obligations estates interests con- "tracts charges rates rights-of-way or other easements whatsoever and to the intent that the legal estate therein together with all powers incident thereto as conferred by this Act shall be vested in the Minister as a trustee, &c." The term " Minister" is defined by sec. 4. Sec. 11 provides that "the estate and interest of every person entitled to land resumed under this Act or any portion thereof and whether to the legal or the equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Minister as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law. And every such estate and interest shall upon the publication of such notiti- cation as aforesaid be taken to have been converted into a claim for compensation in pursuance of the provisions hereinafter contained and every person shall upon asserting his claim as hereinafter provided and making out his title in respect of any portion of the said resumed Jands be entitled to compensation on account of such resumption in manner hereinafter provided." See. 12 provides that, within 90 days after publication of the notification already referred to, the person claiming compensa- tion must make his claim setting out the nature of his estate or interest together with an abstract of his title, &. The time may _be,and in this case , extended by the Supreme Court. See. 13 provides that "within sixty days after the receipt of every such notice of claim by the Crown Solicitor he shall forward the same together with his report thereon to the constructing authority who shall thereupon (unless no primd fucie case for compensa- tion is disclosed) cause a valuation of the land or of the estate or 'interest of the claimant therein to be made in accordance with the provisions of this Act and shall inform the claimant as soon as practicable of the amount of such valuation, &c." The appellants duly sent in a claim, and they now ask for a valuation.

[57]

Bearing} in mind that the Statute is to be construed, if possible, so as not to interfere with vested rights, let us con- sider their position. Clissold was entitled to possession of the land as against anyone except the real owner, and could haye asserted that right by an action of ejectment. Indeed, but for the notification, he could have ejected the constructing authority. The Act expressly provides that the title of the holder of the land shall cease upon the notification of the resumption being pub- lished in the Gazette, and that his estate shall be converted into a claim for compensation. But, if the contention of the respondents were to prevail, that the effect of the notification was to swallow up the ten years' title of the claimant, that would be to give to it the effect of a judgment in ejectment recovered by the real owner

who is unknown to this day - against the person in possession, and the claim to compensation mto which the estate is to be converted would be illusory, That would certainly not be a pro- tection of vested interests. To construe the Act in that way would be to make it an Act, not for compensation, but for con- fiscation. A further examination of the Act will show that, if the effect of resumption were to extinguish imperfect titles, some of its provisions would be quite unnecessary. In the English Act the sections providing for compensation in such cases are intro- duced by an introductory clause, "and with respect to the purchase-money or compensation coming to parties having limited interests or prevented from treating or not making title be it enacted " &e. (sec. 67). There is no such provision in the New South Wales Statute, but there are various provisions which show that they were intended to apply to persons who failed to make title, like the claimant in this After the notification 'of resumption, the person claiming compensation is not entitled to receive the moneys appropriated for that purpose until he has proved his right to it to the satisfaction of the constructing authority, who, if not satisfied, may pay the amount into Court. It appears, therefore, that the Statute intended to provide that the compensation to be offered should be assessed in the case of persons who could not make a legal title, as well as in the case of those who could. Whatever the nature of the interest which they have, it is assumed to be capable of being valued for com-

At a glance

Court

Decision date

Source

Judgment (66 paragraphs)