Interior, Minister for v Brisbane Amateur Turf Club

Interior, Minister for v Brisbane Amateur Turf Club - [1949] HCA 31 - HCA 1949 case summary — Zoe

[22]

It is further contended that the claimant is precluded from making any claim by reason of circumstances which have happened during and since the occupation. In the first place, it is argued that the claimant is precluded from making the claim which was dealt with by the Compensation Board and reviewed by Mansfield S.P.J. by an earlier determination of the Compensation Board. As to this determination it is contended, first, that the determination in itself bound the plaintiff, and secondly, that the plaintiff by its conduct accepted the determination and therefore agreed to be bound by it. This was a determination made upon a claim dated 17th September 1942. The claim was forwarded with a letter which stated that the writer (the club's solicitor) was instructed by the club to forward "a list of the amounts expended by and on behalf of the club since the occupation thereof for Commonwealth purposes together with a notification of items of physical damages caused through military occupation of the property." The total claim was £5,975, and the writer asked that a cheque be forwarded in payment of the amount. The particulars of the list enclosed with the letter were headed "Amounts expended by the Brisbane Amateur Turf Club in connection with the Doomben Racecourse since the occupation thereof for Commonwealth purposes." The first item in the claim was for rent from 15th December 1941 to 14th September 1942, nine months at £1,500 per quarter - £4,500. The next was a claim for rates to Brisbane City Council, £1,519 18s. 10d. per annum for nine months - £1,139 19s. 1d. There was then a claim for insurance and for certain servicing and cleaning work on the course. (It may here be stated that by a letter dated 18th December 1941 the Assistant Director of Hirings informed the club that the Commonwealth would not accept responsibility for insurable losses in respect of property and that the owner should therefore keep the property insured. This was done, and the Commonwealth has re-imbursed the claimant the amounts of premiums for insurance paid throughout the period of occupation and up to 1st June 1946. The same observation applies to expenses of keeping the course in order and preventing damage to it during the same period. No question now arises as to these matters or as to restoration of physical damage.)

[51]

Mansfield S.P.J. held that the claim was not out of time because if the claim were regarded as a claim which could be made after and only after the cessation of interference with rights of a continuing nature under the proviso to reg. 60D the fact was that the interference with the property of which the club was the tenant had not ceased at the time when the club made the claim because the Commonwealth was then still in occupation of the Straight Six. His Honour held that the continued occupation of the Straight Six was an interference with rights which was of a continuing nature, that it had not ceased, and that therefore the claim was rather premature than out of time. The regulations make no provision for piece-meal restoration of land of which possession has been taken under reg. 54. It may be that the Commonwealth could have terminated possession of the whole 137 acres and then reentered into the fifty acres constituting the Straight Six immediately after the 31st July 1944. If this had been done there would have been a separate authority under which possession of the Straight Six could lawfully be held. This course was not followed. The action of the Commonwealth in relation to the Straight Six after July 1944 was authorized only by the notice with respect to the occupation of "The Doomben Racecourse" which was given in December 1941. There was still occupation of part of the racecourse up to a date in 1948. Any occupation of any part of the racecourse, including the Straight Six, must be regarded as referable to that notice. Thus I agree with the learned judge that the interference which reg. 54 authorized had not ceased as long as the Commonwealth occupied by virtue of the notice and that for this reason the claim, if it should be regarded as made under the proviso to reg. 60D, should not be regarded as made later than two months after the interference had ceased. Further, I repeat, for reasons already stated, that the Minister had extended the time for making the claim.

[64]

The respondents are a Racing Club consisting of about forty members. The club is managed by a committee of eight. Its property is vested in two trustees. The owner in fee simple of the racecourse is a company called Doomben Park Recreation Grounds Proprietary Ltd. By The Racing and Coursing Regulation Acts 1930 to 1936 (Qld. Acts, vol. 3, p. 725) race meetings cannot be conducted for private gain. The company could not therefore carry on the business of racing on the Doomben Park course. By a lease granted on 7th March 1932 the company leased the course to the respondent club for a term of seven years from a date to be fixed by events, a date which seems to have been ascertained as 1st May 1932. The club covenanted to erect a number of structures at a cost not exceeding £25,000. For the first four years the rent reserved was £2,000 per annum. It then went up by a thousand pounds a year until for the seventh year it was £5,000. A new lease was granted or new leases were granted for the years ending 1st May 1940 and 1st May 1941 at a rent of £6,000 per annum. The lease was renewed by an informal agreement for the year ending 1st May 1941. The agreement gave an option of renewal for another year. While this term was on foot, on 15th December 1941, the Commonwealth took over the racecourse, which was used as a camp for American troops. The respondent club owned another racecourse, called Albion Park. Unlike the Doomben Park course, Albion Park course was not a grass track but a dirt track. It could therefore be used with great frequency. A given number of race days were assigned under the legislation to Doomben Park course. The racing for these days was transferred to Albion Park. Two or three other racing clubs whose racecourses were taken for the purposes of the war were also allowed to race at Albion Park. The respondent club, after some demur, accepted a fee from the chief of these clubs for each day's racing. It was fixed at £125. The same charge was then made to the other two clubs. The racing drew large crowds and there was not a decrease but an increase in the net returns from the racing days at Albion Park course representing the meetings which would have been held at Doomben Park course. Regulation 60D of the National Security (General) Regulations prescribes how a claim for compensation is to be made. If the compensation is not determined by agreement, then within two months after the doing of the thing on which the claim is based, or within such further time as the Minister allows, the person suffering loss or damage may make a claim in writing to the Minister. There is a proviso. The proviso relates to an interference with rights which is of a continuing nature. In such a case the claimant may claim as compensation a periodical payment during the continuance of the interference. Two months after it ceases the claimant may then submit a further claim in respect of any loss or damage suffered by reason of anything done during the period of the interference which has not been made good and is not covered by the periodical payment. On 17th September 1942 the respondent club submitted a claim covering the period of nine months from 15th December 1941 to 14th September 1942. The claim was based upon expenditure. The items were rent, rates, insurance, some small items of maintenance and half the wages of a caretaker and a plumber. There seems to have been an arrangement that the employment of the caretaker and the plumber should be continued but that the Commonwealth should bear half the wages. This item is therefore scarcely part of the compensation. On the day following the date of this claim, namely on 18th September 1942, the National Security (Hirings Administration) Regulations came into operation. The claim was dealt with under those regulations. Regulation 21 (2) provides that, where a claim in respect of a hiring (an expression defined to cover an exercise of power under the General Regulations such as that in question) is made in pursuance of reg. 60D of the General Regulations, the Central Hirings Committee or its delegate shall determine (inter alia) the amount of compensation in the form of a lump sum or in the form of a periodical payment or both which the committee or its delegate, as the case may be, considers just and reasonable. The Central Hirings Committee sought from the respondent club and obtained information concerning the number of race meetings held in the period in question and the cost to the club of using Albion Park course as an alternative.

[72]

In my opinion the withdrawal of the request to refer the claim to a Compensation Board operated to place the respondent club in the same position as if the request had never been made. For the purpose of giving finality to the determination it invited the adoption of a conventional assumption that the request had not been made. The assumption was adopted and the respondent club cannot now depart from it. It follows that reg. 60E (2) applied to the determination of 27th August 1943 so as to require that it should be deemed to be an offer accepted by the claimant. The fact that the determination covered a period beyond that of the claim is an objection which the respondent club plainly waived both by the withdrawal and by the acceptance of payment of the amount of the determination. The payment was made on 7th September 1943, actually before the request to refer. But the acceptance and retention of the amount is inconsistent with a complaint that the determination goes beyond the period of the claim. It is, I think, a question of some doubt whether the respondent club did not also preclude itself from asserting a claim for future compensation in respect of the Commonwealth's bare occupation of the land, as distinguished from physical damage, on any other basis than the periodical payment which it is fairly plain the Central Hirings Committee had in mind. The withdrawal of the request to refer and of further claims is of course one factor. But in addition, at subsequent dates, in putting forward claims for physical damage the respondent club asserted on three occasions that a periodical compensation had been agreed. This was stated in a claim dated 15th September 1944, in another dated 21st July 1945 and in a third dated 27th March 1946. The claims were made on departmental forms containing questions. They were signed by the secretary of the respondent club who was also its solicitor. Information responsive to the questions was given, including the statement that an agreement was executed between the claimant and the Commonwealth the date of which was 18th September 1942, that the amount of compensation or other moneys payable thereunder was £158 per calendar month in round figures, and that it expired on 31st July 1944. On the third occasion, that is in the claim of 27th March 1946, the word "recommended" is introduced before the words "round figures" and after them the words "subject to a further claim." The date 18th September 1942 was that of the formal establishment of the Central Hirings Board, which dealt with the claim of the club bearing the previous day's date. The sum of £158 is arrived at, clearly enough, by adding £33 to the £125 fixed as the compensation for each of the twelve race meetings of the year transferred to Albion Park. The amount of £33 added represents the monthly average total of half the wages of the caretaker and the plumber and the insurance premium. Of course no such formal agreement was executed. But it is the question that speaks of an agreement "being executed" and the answer is simply "Yes." It seems a certain inference that for a very long time the respondent club was content to proceed on the basis that compensation for the occupation of the course had been agreed at the rate of £125 for twelve meetings a year lost, together with insurance and half the wages of the caretaker and plumber. Before 27th March 1946, namely, on 19th October 1945, the respondent club had formulated a much more extensive claim, in fact the claim which is now before us. The qualifying words "subject to a further claim" were doubtless introduced for that reason in setting down on the form the answers to the questions which on the two earlier occasions had been answered absolutely.

[73]

But in spite of the weight of these considerations I have come to the conclusion that there is not enough to conclude the respondent club from advancing a greater claim in respect of the period of the Commonwealth's occupancy after 30th June 1943. To be effective as a settlement of the claim an agreement of the nature suggested must involve an exchange of promises by which the Commonwealth agreed to pay and the respondent club agreed to accept, for the use and occupation of the premises, £158 a month so long as the occupancy continued. The Commonwealth called no oral evidence to prove that any express agreement took place. The secretary of the club did give evidence but he disclaimed any such agreement. The transition from £125 a race meeting together with half the wages of caretaker and plumber to the fixed figure of £158 a month, though perhaps natural, stands unexplained by evidence. The date suggests that the "agreement" referred to is an agreement by construction of law, consisting in the claim, the determination by the newly-born Central Hirings Committee and by its subsequent acceptance. On the whole I think that an agreement to accept for the period after 30th June 1943 a periodical payment of £158 a month or £125 a month or £125 for every racing meeting transferred to Albion Park course, as periodical compensation for the occupancy of Doomben Park course, has not been established by the Commonwealth. It was suggested, however, that the respondent club was precluded or estopped from denying that a periodical payment had been fixed or determined to cover the period. There are, I think, two answers to this suggestion. One is that estoppels must be certain and there is not sufficient certainty about the intention of the formal determination to fix a periodical rate binding in the future or about the rate intended to be fixed. That is to say there is an uncertainty whether it was intended to fix a monthly rate of £125 because there had been twelve meetings a year transferred or to fix a rate depending in the future upon the number of meetings actually held, and it is uncertain how far the wages entered into the periodical compensation.

[78]

From 31st July 1944 the respondent club and not the Commonwealth was in possession of the Doomben Park racecourse, except the piece of land forming the straight six furlongs. No doubt the principle of the decisions of this Court to which I have referred continued to apply to the latter piece of land until the fee simple was resumed. But to the main part of the course it ceased to apply when possession was restored to the club. There was no longer any estate or interest in land compulsorily taken. But though possession of the land was restored, the usefulness of the land to the respondent club was impaired, or temporarily destroyed, because of the physical condition in which the land was left. To assess compensation for that involves arriving at the cost of reparation and at the loss suffered by the occupier because the occupier cannot put it to proper use. This is a somewhat different conception from that of ascertaining the annual value of a site occupied, independently of the particular situation of the occupier who has been dispossessed. I do not think that in the case of Brickworks Ltd. v. Minister for Army [1] the result would have been the same, if the question had been compensation for loss of the possible use of the premises for brick-making by reason of the physical condition in which the premises were left. I think that to employ the rent fixed by the lease as the measure of this loss becomes very unreal. On the other hand it seems probable that the sum of £125 for every racing meeting held at Albion Park course that would have been held at Doomben Park course leaves some charges insufficiently covered. Some expenditure at Doomben Park must have been thrown away during this period, if only of the wages of the caretaker, plumber and gardener. The proportion of the rent attributable to the straight six furlongs at an average rate per acre, not a very satisfactory basis, is £184 a month. This perhaps should be allowed in respect of the period up to the resumption of that piece of land which we were told was 10th June 1948, that is after the hearing by the Board of Review.

[86]

The second point relates to the title of the respondent club to the use and occupation of the land after 30th April 1942. The lease or agreement for a lease under which the club or its trustees held the racecourse at the time when the Commonwealth entered expired on that day. There was an option of renewal for another year which was exercised. A lease for another two years was granted as from 1st May 1943. Then there was another lease for two years as from 1st May 1945. When the option was exercised and the first of the two successive leases was granted the Commonwealth held the land, which it occupied under its statutory right. There was no lease under seal, at all events for the period covered by the option. It is said that no interest could pass to the club as lessee under the exercise of the option or the grant of the lease, because the owner in fee simple, Doomben Park Recreation Grounds Proprietary Ltd., held in reversion. The Commonwealth was in possession under a statutory title of indefinite duration and, so it was contended, the owner had only a reversion expectant on the determination of the Commonwealth's interest. The common-law doctrine was invoked that an immediate grant of a leasehold interest in the reversion, as distinguished from an interesse termini to take effect at the end of an existing term, must be by grant and so under seal. Accordingly if the interest in the reversion is of no greater duration than the balance of the existing term, is intended to take effect in reversion immediately and is made by parol, it is ineffectual at common law. This is explained in Smith v. Stapleton & Heycock [1] ; see Neale v. MacKenzie [2] . A concurrent lease, if made by deed, operates as an assignment of the reversion upon the first lease for the term of the second or concurrent lease. But if made by parol for a less term than the original lease it is ineffectual. An assignment by deed for a term of years of the reversion entitles the assignee to the rents. These principles are inapplicable to the present case. The Commonwealth was not the grantee of a term of years. It was in under a statutory right enabling it to occupy at will, that is at the Commonwealth's will. The period of occupation is undefined; there is no reversion expectant upon a recognized common-law interest. The real difficulty is that the lease for the period beginning 1st May 1943 is subsequent to the Commonwealth's entry. The previous renewal was the result of an option which existed at the date of the entry. Both interests were however, intended to take effect immediately so as to give an immediate right to the rents and profits of the land including the compensation for exclusion from occupation. The Commonwealth was bound to compensate either the owner or the club for depriving the one or other of the right to occupy the premises. I see no reason why the right to possession should not be granted by a lease although the Commonwealth was in actual possession. The Commonwealth recognized the respondent club as the person entitled to possession and compensation for exclusion therefrom. In my opinion the respondent club is entitled in virtue of its successive leases to the compensation because of the entry of the Commonwealth and the retention of possession.

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Parties

Cited By (3)