Ms Bailey signed the document above the word "Secretary."
33 The Council submitted that precise compliance with the Aboriginal Land Rights Act 1983, s 40D(2) was required and the certificate failed that requirement.
34 As to the former proposition, reference was made to Shomat Pty Ltd v Rubinstein (1995) 124 FLR 284. A deed charging a company's assets contained a provision that a statement signed by a person within any of several classes of the amount owing or secured by the charge was conclusive. At 289, Young J referred to his earlier decision in National Australia Bank Ltd v Sampson, NSWSC, unreported, 9 September 1991 and said that clauses providing for certificates of that nature must be strictly construed, the reasons being that parties who have agreed to forego their rights to dispute the quantum claimed by the other party to the financial transaction, expect that the certificate will be given fairly and in proper form.
35 His Honour concluded that there was no compliance with the clause. One of his reasons for this conclusion, at 289, was that a statement was required and what was proffered was a certificate. In State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587 at [252], Einstein J respectfully declined to follow this aspect of the decision. I respectfully agree with Einstein J. The purpose of such clauses is to produce a statement in the sense of a written communication of specified information. In my view, it matters not what form the statement takes if it communicates in writing the specified information.
36 A like approach of strict compliance was adopted by Bignold J in Darkingung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298. Section 36(3) of the Aboriginal Land Rights Act 1983 provided that one or more Local Aboriginal Land Councils might make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area. Section 36(5) provided that a Crown Lands Minister to whom a claim for lands had been referred should, if satisfied that the whole or part only of the lands claimed were claimable Crown lands, grant the claim by transferring to the claimant the whole or that part of the lands claimed.
37 "Claimable Crown lands" were defined in the Aboriginal Land Rights Act 1983, s 36(1) to be, amongst other lands, lands not needed, nor likely to be needed, for an essential public purpose. Section 36(8)(b) provided that a certificate by a Crown Lands Minister, after consultation with the Minister administering the Act, stating that any land the subject of a claim under the section and specified in the certificate as needed or likely to be needed for an essential public purpose, should be accepted as final and conclusive evidence of the matter set out in the certificate and should not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.
38 The certificate considered by Bignold J certified that the land was needed, and likely to be needed, for an essential public purpose. At 315 his Honour concluded that the use of the word "and" rather than "or" was fatal and the document was not a certificate for the purposes of the Aboriginal Land Rights Act 1983, s 36(8).
39 With respect to his Honour, I doubt that I would have arrived at the same conclusion. But I do not need to decide that question for there is, to my mind, a distinction between the certificate in question before him and the certificate here in question.
40 In each of the above cases, the effect of the certificate was to deprive the recipient of any inquiry that might have revealed an error and might have resulted in the recipient achieving a more beneficial result. The purpose was to exclude the inquiry.
41 That is not the purpose of the certificate in the instant circumstances. It is not to deprive the recipient of inquiry, but rather to relieve from that necessity. The recipient may make inquiry if that is wished. There is no preclusion from doing so. But the certificate saves the need for such inquiry. A recipient is placed in the position that it is conclusively established that the preclusive provision of the Aboriginal Land Rights Act 1983, s 40(2) is overcome. The certificate conclusively establishes that the prerequisites in s 40D(1) have been accomplished and the embargo upon free disposal of land vested in a Local Aboriginal Land Council is overcome.
42 LKM sought to differentiate between what it termed unilateral certificates permitting one party, unilaterally and conclusively, to affect the rights of another person and protective certificates, providing protection or certainty to another person who relied on the validity of certain actions of the person issuing the certificate.
43 I doubt that the authorities establish this dichotomy. In my view the question in each case is one of construction having regard to the purpose of the provision in question.
44 LKM referred to Wilde v Australian Trade Equipment Co Pty Ltd (1980-1981) 145 CLR 590. The Companies Act, 1961 (Qld), s 100(1) provided that where a charge was created by a company, there should be lodged with the Commissioner for registration within 30 days after the creation of the charge, a statement of prescribed particulars. If there was no compliance with the section, the charge was void against the liquidator and any creditor of the company. The company granted a charge but it was not registered.
45 The Companies Act, 1961 (Qld), s 106 provided that the Court, on being satisfied that the omission to register a charge within time was accidental, due to inadvertence, or to some other sufficient cause, or was not of a nature to prejudice the position of creditors or shareholders, or that on other grounds it was just and equitable to grant relief, might order that the time for registration be extended. An order was made on the ex parte application of the grantee of the charge extending the time for registration, and the charge was then registered.
46 Section 103(2) of the Companies Act, 1961 (Qld) provided that the Commissioner should issue a certificate of every registration and the certificate should be conclusive evidence of compliance with the requirements as to registration. The certificate stated that a bill of sale of a specified date was registered on another specified date, more than 30 days after the grant of the charge.
47 The company was subsequently wound up and the liquidators applied for a declaration that the charge was void against them. It was held that the registration affected in compliance with the order extending time was valid and continued to be valid despite an order setting aside the extension of time. At 604, Stephen, Murphy and Wilson JJ, with whom Aickin J agreed, said that it could not be said, having regard to the certificate, that the charge was not validly registered so as to be void against the liquidator. Their Honours said that although it was always appropriate to go behind the certificate to the instrument itself to discover the details concerning the charge, and to any order of the court to discover any terms and conditions that might have been imposed on late registration, one cannot go behind the certificate to challenge the propriety of the registration itself. Any other conclusion would amount to a denial of the plain words of the section.
48 The Council invoked the observation of Gibbs J, that a certificate cannot be conclusive evidence of something that its own words contradict. But his Honour was in dissent.
49 LKM made reference to Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. Leases were demised for 10 years from and including 13 January 1992. The leases contained terms that the tenant could determine the lease by serving not less than six months notice in writing to expire on the third anniversary of the term commencement date. By letters dated 24 June 1994 the tenant gave notices to determine both leases on 12 January 1995.
50 In was held by a majority of the House of Lords that the construction of the notices had to be approached objectively and the question was how a reasonable recipient would have understood them bearing in mind their context; that the purpose of the notices was to inform the landlord of the tenant's decision to determine the leases in accordance with the break clauses; that a reasonable recipient with knowledge of the terms of the leases and of the third anniversary date, would have been left in no doubt that the tenant wished to determine the leases on 13 January 1995 but had wrongly described it as 12 January, and that, accordingly, the notices were effective.
51 In my view, in the absence of a prescribed form, a certificate answers the description in the Aboriginal Lands Rights Act 1983, s 40D(2) if it certifies to the matter specified in the subsection.
The validity of the certificate
52 The Council submitted that what is required is an unequivocal, unqualified assertion of statutory compliance. It was submitted that the certificate was qualified by the statement that the land was not of cultural significance to Aboriginal people of the area. That constituted a qualification, so it was submitted, because it was but one of the prerequisites in the Aboriginal Lands Rights Act 1983, s 40D(1). It was submitted that the certificate should be read as one certifying only to that prerequisite.
53 I reject that submission. It is inconsistent with the language of the certificate taken as a whole. The secretary of the Council could not have certified that there was no contravention of s 40D of the Aboriginal Lands Rights Act 1983 if the only matter to which reference is made in s 40D(1) that had occurred was the determination that the land was not of cultural significance to Aborigines in the area. It must be assumed that in giving her certificate, the secretary was aware of the requirements of s 40D(1). In certifying that the disposal of lot 556 did not contravene s 40D she must be taken to have had in mind the other requirements of s 40D(1).
54 In my view, the addition of the reference to the land not having cultural significance for Aboriginal people is explanatory in nature and does not constitute a qualification upon the secretary's certification that s 40D of the Aboriginal Lands Rights Act 1983 had not been contravened. That is the specified information that is to be communicated by a certificate that has force under s 40D(2). In my opinion, that was the certification made by the secretary, and the addition of the explanation does not rob the certificate of statutory effect.
55 In my view, therefore, notwithstanding the failure of the Council to comply with the requirements of the Aboriginal Land Rights Act 1983, s 40D(1) when it transferred lot 556 to the Trustee, the certificate of the secretary of the Council of 30 March 2001 protected LKM from the voiding of the transaction under s 40(2) if it had no notice that the disposal did contravene the section. The certificate also protected the Trustee if it had no such notice.
Notice of non-compliance
56 The Council submitted that a person was not entitled to the protection of the conclusive effect of a certificate under the Aboriginal Lands Rights Act 1983, s 40D(2) if the person had constructive notice that the disposal of the land contravened s 40D(1).
57 It has been said that a person is deemed to have constructive notice of all matters of which he would have received notice if he had made the investigations usually made in similar transactions and of which he would have received notice had he investigated a relevant fact which had come to his notice and into which a reasonable man ought to have inquired (Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, LexisNexis Butterworths, Australia, 2002 at [8-270]. See, also, Jacobs' Law of Trusts in Australia, 7th ed, LexisNexis Butterworths, Australia, 2006 at [1337]).
58 As is pointed out by the authors, constructive notice arises if investigations that are usually made in similar transactions, are not made. The very purpose of a conclusive certificate is to avoid the necessity of making investigation. If investigation is not called for, a failure to do so cannot, in my view, impute to a person making no investigation the knowledge he or she would have acquired had the investigation been made. I am of the view that the failure to make investigation upon receipt of the certificate here in question was not sufficient to impute knowledge of the Council's failure to comply with the statute to LKM or, for that matter, to the Trustee.
59 Rolf Koops, a solicitor, was a director of LKM. His firm of solicitors acted for LKM in respect of its dealings with the Trustee and Sanpine. Mr Koops was cross-examined. He was aware of the requirements of the Aboriginal Land Rights Act 1983. He said he saw no irregularity in the certificate and relied upon it to cause LKM to lend money to the Koompahtoo Trust.
60 It was submitted that this evidence should be treated with circumspection. It was submitted that Mr Koops should have been put on inquiry by the limitation patent on the face of the certificate.
61 Since I have found, however, that the certificate was not deficient, this submission of the Council falls away. Furthermore, in light of the purpose of the certificate to obviate inquiry, it was perfectly open to Mr Koops, not perceiving any irregularity in it, to rely upon the certificate and make no further inquiry.
62 There was no evidence to suggest that LKM had actual notice of the Council's failure to comply with the Aboriginal Land Rights Act 1983, s 40D(1).
63 William Edward Smith was chairman of the Council and sole director of the Trustee when the transfer of lot 556 took place. He and Stephen Griffin affixed and witnessed the seal of the Trustee to the transfer. They also affixed and witnessed the seal of the Council to the transfer. It was submitted that notice of non-compliance with the statutory requirements should be imputed to him from these facts. I do not impute actual notice to Mr Smith. He may well have delegated the requirement to comply with the Aboriginal Land Rights Act 1983, s 40D(1) to someone else. No affidavit of his was read and he did not otherwise give evidence. Nor did anyone else give evidence relating to Mr Smith's state of knowledge.
64 Mr Griffin signed the transfer of lot 556 as a director of the Trustee. He was premature in his assumption of office. His appointment as a director occurred later. He was Treasurer and an alternative regional representative of the Council. I was invited to impute notice of the Council's non-compliance with the Aboriginal Land Rights Act 1983, s 40D(1) on the basis of this evidence alone. I decline to do so. Actual notice cannot be inferred from this flimsy base.
65 In the circumstances, I am of the view that the Council has failed to establish either against LKM or against the Trustee that the transfer of lot 556 to the Trustee was void with the consequence that the mortgage by the Trustee to LKM was also void.
The Council's beneficial interest in lot 556
66 The Council's secondary argument was that the mortgage by the Trustee to LKM infringed the Aboriginal Land Rights Act 1983, s 40(1) because land was defined in s 4(1) to include any estate or interest in land and under the terms of the Koompahtoo Trust the Council had a beneficial interest in lot 556. The consequence was, it was submitted, that the mortgage by the Trustee to LKM was void under s 40(2) unless it complied with the requirements of s 40D(1), and it did not.
67 Whether the Council as sole unit holder of those units having the entire right to income and corpus invoked the rule in Saunders v Vautier (1841) 4 Beav 115 (49 ER 282), affirmed at (1841) Cr & Ph 240 (41 ER 482) will depend upon the terms of the trust deed granting rights of reimbursement or exoneration upon the Trustee (CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 79 ALJR 1724 at [51]. See, also, Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 80 ALJR 519).
68 Even if it could be said that the Trustee's grant of the mortgage to LKM constituted a mortgage of a beneficial interest in lot 556 held by the Council, that mortgage was not effected by a Local Aboriginal Land Council. It was effected by the Trustee. The embargo in the Aboriginal Land Rights Act 1983, s 40(1) is limited to a mortgage effected by a Local Aboriginal Land Council.
The composite transaction and the expectation
69 The Council argued that the transfer by it to the Trustee and the mortgage by the Trustee to LKM was a composite transaction. Reference was made to Abbey National Building Society v Cann [1991] AC 56. In that case the House of Lords held that where a purchaser relied on a financial institution loan for completion of his purchase, the transactions of acquiring the legal estate and granting a charge were one indivisible transaction, at least where there had been a prior agreement to grant the charge on the legal estate when obtained. There was no scintilla temporis during which the legal estate vested in the purchaser free of the charge and an estoppel affecting the purchaser could be "fed" by the acquisition of the legal estate so as to become binding on, and take priority over the interest of, the chargee.
70 In this case, however, there is no direct evidence of a prior agreement on the Trustee's part to grant the mortgage to finance the acquisition. Furthermore, the transfer was effected on 30 March 2001 and the mortgage was not granted until 10 April 2001. That gap was hardly a scintilla temporis.
71 But even if the mortgage is to be treated as part of a composite transaction, the certificate of 30 March 2001 applied to a disposal by way of sale, exchange, mortgage or otherwise by the Council so that, in my view, LKM was protected by the certificate from any invalidity in the grant of the mortgage.
72 The Council also submitted that by transferring lot 556 to the Trustee with the expectation that it would become mortgaged to LKM, the Council otherwise dealt with land vested in it in contravention of the Aboriginal Land Rights Act 1983, s 40(1).
73 Again, even if the transaction could be thus characterised, the certificate covered a disposal by way of sale, exchange, mortgage or otherwise.