Sydney Municipal Council v Royal Agricultural Society of New South Wales [1905] HCA 56

Certain land was vested by Act of Parliament in the Royal A Society of New South Wales, for the purpose of holding agriculturs and exhibitions, and for other purposes, which were primarily an purposes of 'public recreation health or enjoyment," but with p the Society to charge the public for admission to the land, and to d profits made from the use of the land towards the objects of the These objects, as set out in the Society's Act of incorporation and ra in general such as came within the meaning of the exemption included also certain privileges for the members beyond those enjoyed general public.

Held, that, as the members of the Society were entitled to a enjoyment from the land beyond that of the general public, the land within the exemption. 7

Decision of the Supreme Court, Municipal Council of Sydney Y. Agricultural Society of New South Wales, (1905) 5 S.R. (N.S.W

_ The respondents were assessed by the appellants for municipal rates in respect of a certain piece of land within the municipal boundaries of the Corporation of Sydney, under sec. 110 of the Sydney Corporation Act, 1902. The respondents appealed from the assessment to a Judge of the District Court. That learned Judge held that the respondents were not liable, on the ground that the land was vested in them as "trustees for purposes of public recreation health and enjoyment" within the meaning of » sec. 110, sub-sec. 5, of the Sydney Corporation Act, 1902. From that decision the appellants appealed by way of special case stated for the opinion of the Supreme Court, and that Court dismissed . the appeal with costs: Municipal Council of Sydney v. Royal ~ Agricultural Society of N.S.W. (1). From that decision the present appeal was brought. The facts, and the various sections of the Acts referred to are sufficiently set out in the judgments.

Gordon, K.C., (Leverrier with him), for the appellants. The purposes for which the land is vested in the respondents are set

" out in sec. 4 of the Act No. 45 of 1902. Assuming that the res- 1 pondents are trustees, the purposes for which it is vested in them _ are not necessarily "for public recreation health or enjoyment." The purposes must be exclusively of that kind, just as, in the case

. of land exempted by reason of its being used for public purposes, the land must be used exclusively for those purposes: Mayor ce. of Essenden v. Blackwood (2). The purposes actually enumerated in the section, down to the words "live stock," might possibly be within the exemption, but the Minister has power to sanction the use of the land for "other purposes." The "other purposes" are not necessarily ejusdem generis with those mentioned. The " only restriction on the respondents is that pony racing is not to be allowed. Where a class or classes of purposes are specified,

_ other purposes must mean purposes of another class. The doctrine _ of ejusdem generis only applies to cases where the objects men- _ tioned are particular, not generic. Sec. 5 does not revoke the vesting upon the happening of the events stated; it merely gives power to revoke. Looking at this Act alone, the land is not

(1) (1905) 5 8.R. (N.S.W.), 693, (2) 2 App. Cas., 574.

MosicrpaL CounciL oF SypNey v Royat Acri- CULTURAL Society oF New Sourn WaALEs.

vested in the respondents exclusively for purposes of recreation health and enjoyment, and is not exempt. . 7

Apart from this, the land is vested in the Society and ther may be used to further the objects of the Society, as d ne its Act of incorporation and rules. 'The profits derived charge made upon the public for admission &, may be de towards any of those objects, some of which are clearly not pul By rule 2 the Society may extend its operations to other pa the country, and by rule 7 certain privileges are conferred y the members as distinguished from the general public. Ther pondents have therefore a beneficial enjoyment of the land bey that of the general public, and cannot claim to be trustees at Mayor &e. of Essenden v. Blackwood (1). They are bot show that they come strictly within the exemption. "Tru: in sec. 110 of the Sydney Corporation Act, 1902, must i its legal meaning. A beneficial interest is inconsistent y trusteeship. The fact that the respondents are a Society, that their beneficial enjoyment is subject to certain restrit does not constitute them trustees.

(Grirrira C.J., referred to Caraher v. Lloyd (2), and Do wn Attorney-General of Queensland (3)). 4

The provision of privileges for members is not a public purp

them it appears that the respondents are not trustees, nor are purposes for which the land is vested in them "purposes of recreation health or enjoyment." 'The statement in the judi of the Supreme Court that it was admitted that the respot were trustees for the purposes mentioned is the result of a mi apprehension. That was not admitted.

(He referred also to Borough of Randwick v. Dangar Or Sydney Municipal Couneil vy. Attorney-General for New So Wales (5).} ;

Cullen K.C. and Coghlan, (OReilly with them), for respondents. The point that the respondents were not trust (1) 2 App. Cas., 574. (4) 15. N.S.W. W.N,, 37.

(2) 2C.L.R., 480, at p. 505. (5) (1894) A.C., 444. (3) 2 C.L.R., 639.

3 CLR.) OF AUSTRALIA. 301 was never raised in the Supreme Court. If it had been raised at H. ©. or A. "the proper time, evidence could have been given that the respond- 18%

ents received the land under circumstances from which the Court yqusiorpan

of Equity would have inferred a trust, and that the respondents GouseR OF

d fi i i . were therefore estopped from denying that they held the land in PRS

trust, whatever the purposes were. The tenure of the Municipal cvrrurat Council was held to be a trust for a common of pasturage: Sydney eecrr eee Municipal Council v. Attorney-General for New South Wales Waves. (1), and the respondents agreed to take the land over subject to a

(Grirrira C.J. - The preliminary arrangements between the parties are like negotiations preparatory to drawing up a contract. Here the contract is represented by the vesting Act, which is the respondents' title. ]

Evidence of a trust could be given without cutting down the terms of the instrument.

The respondents have been held to be "trustees" within the meaning of the Public Parks Act, 18 Vict. No. 33: Sydney Muni- cipal Council v. Attorney-General for New South Wales (2); and "trustee" in that Act means a trustee in whom a place of public recreation, convenience, health or enjoyment is vested by law. That is sufficient to bring them within the meaning of sec. 110 of the Corporation Act, for the terms of the Statute No. 45 of 1902, under which the respondents now hold, are in effect the same as those of the lease under which they originally held from the Council. If the land is not now vested in the respondents

for the exempted purposes it is in the Council. In either case it is exempt.

The respondents have no power under the Act No. 45 of 1902 to derive a beneficial enjoyment from the land: sec. 3 and the preamble. All the objects mentioned in the Act are public, and _ there is no power to make rules inconsistent with those objects, and, So far as the rules exceed the power, they are void. The user of the land is immaterial. The reference to pony racing may be explained historically by the fact that the former lessees had been using the land for that purpose.

(1) (1894) A.C., 444. (2) (1894) A.C., 444, at p. 449. Vou, ut. 21

The Minister can only sanction purposes of a kind eju generis with those mentioned. [They referred to In re Ragged Industrial and Reformatory Schools (1).} The the words bears that out. The provision for the admission o public and for making a charge comes after the provision as sanction of the Minister, showing that only purposes of a p character are contemplated. The profits can only be expended the objects for which the land is vested, and they are publie the meaning of sec. 110. The power to charge for admis not inconsistent with the purposes being public; in fact, as pointed out by Lord Halsbwry in Sydney Municipal Co Attorney-General for N.S.W. (2), the lands would be useless

such charge. If the trust is, speaking generally, of a pu nature, the use of the land for purposes of profit subordinate the main purpose does not make the trust any the less a pu trust: Down v. Attorney-General for Queensland (3) ; County Cowncil v. Wandsworth Borough Cowncil (4) ; Smith'

Beaumont v. Oliveira (7). The absence of the word i immaterial if the terms of the Act show that the members of Society are not entitled to use the property for their ow personal benefit: Randwick Borough Council v. Aus Cities Investment Corporation Ltd. (8); Randwick Boro Council v. Cooper (9); Ex parte Bennetts (10). The privi given to members under the Society's Act of incorporation a for the purpose of carrying out the general objects of the Societ which are public. Even if these privileges were inconsistent a trust, they would only supply an objection to the user of # land ; the document of title, from which the trust appears, is t Act No. 45 of 1902. That Act limits the powers of the Society over the land to purposes of public recreation, health or enjo}

(GrirrirH C.J. referred to Smith v. Kerr (11); and County Couneil v. Erith Churchwardens (12).]

(1) (1898) 2 Ch., 687. (7) LR. 4 Ch., 309. (2) (1894) A.C., 444, at p. 454. (8) 14 N.S.W. LR, 417 (3) 2C.L.R., 639. AC, (4) (1903) 1 K.B., 797. (9) 8 N.S.W. L.R., 1. (5) (1900) 2 Ch., 511 ; (1902) 1 Ch., (10) 21 N.S.W. L.R., 248. 774. (11) (1902) 1 Ch., 774, at p. 780.

sult of the Act 57 Vict. No. 15, which first vested the n the Society, was the transference of the trust from the ipal Council to the respondents, and they cannot do any- ) with the land which the Council could not do, notwith- nding the incorporating Act of 33 Vict. [They referred also to Hiein aged In ve St. Botolph (1); and In re St. Bride's (2).] "CULTURAL

Leverrier, in reply. The profits of the land may be devoted to New Sout 'the objects of the Society, free of any trust, in the same way as the vesting Act. The only effect of the Act was to make the mdents statutory tenants instead of mere lessees. All public are destroyed, save as mentioned in the Act. In order to ive the trust it is not necessary to establish that the indi- members have a pecuniary or beneficial interest in the land,

• the Society as such, for its own purposes has such an

Grirrita C.J. This is an appeal from a decision of the December. apres Court affirming a decision of the Metropolitan District ourt on an appeal by the respondent Society from an assessment the appellants under the Sydney Corporation Act, in respect of a municipal rate. The learned District Court Judge held that _the respondents were not ratable, and in that opinion the Supreme concurred. ; 'The question depends upon the proper construction of sec. 110

s of the particular case. That Act was a re-enactment of ier Acts, sec. 110 having been taken from the Act 43 Vict. No. It is contained in Part IX., which deals with General Rates. b-sec. 4 of that section provides that : " Every building, whether d in or occupied by the Crown or not, and all lands, whether pied or not, within the city, save as hereinafter mentioned, be deemed to be 'ratable property' within the meaning of s Act." Sub-sec. 5 provides, inter alia that: "No land vested trustees for purposes of public recreation, health or enjoyment P shall be liable to be assessed or rated in respect of any rate under this Act."

The respondents claimed that the land in question vested in them under circumstances to which I will p refer, is vested in them as trustees for the purposes of recreation, health or enjoyment, and is therefore exe rating.

Now, the first question is what is the meaning of the e 'pI "trustees for purposes of public recreation, health or ment?" Primd facie, bearing in mind that this is a rati this expression relates to land vested in persons haying no ficial interest in the land, but holding it solely for the pu public recreation, health or enjoyment. An implied term it a trust would be that any money which the trustees 1 from the use of the land by the general public should be aj for the purposes of the trust, that is, in expenditure upoi land, for the purpose of making it better available objects of the trust. Nor could it be said, primd fu persons who have a beneficial use of the land, subject t condition that they shall allow it to be used for the p public recreation, health, or enjoyment, would properly be ¢ trustees of the land for those purposes. An analogous matt this was dealt with by the Privy Council in 1877, in the ¢ The Mayor &c. of Essenden vy. Blackwood (1), on appeal fi Supreme Court of Victoria. The question in that case was ¥ the Flemington Racecourse was exempt from rating, as land property of the Crown used for publie purposes. In ordi sustain the exemption, it was necessary, in the view their L ships took of the matter, to establish both that the land w property of Her Majesty, and that it was used for public pury The Judicial Committee did not decide the first point, whethe land was the property of Her Majesty, but confined its att to the question whether it was used for public purposes wil ; meaning of the section conferring the exemption. The la held by the trustees of the Victorian Racing Club, which wasi porated by a private Act, and the members of the Club had var privileges in respect of the land. After referring to the 0 whether the land was the property of the Crown, and 1 this observation (2), "Undoubtedly, if a grant were m

(1) 2 App. Cas., 574. (2) 2 App. Cas., 574, at p. 5

wn to its own nominee, as a bare trustee for exclusively 'purposes, it might properly be held that the land, within smeaning of the exemption, was still the property of the Crown,"

ey went on to say that they would not decide the case on that mand, and said: "Their Lordships, however, do not think it a secessary to decide the appeal on this point, being of opinion that order to bring the case within the exemption the respondent it to shew that the land was used solely for public purposes, vithout any beneficial occupation by individuals; and this they of opinion he has failed to do." Then, after referring to the aise of Hanna v. Seymowr Road Bourd (1), in which it had been -eld that a bridge-let for several years to a builder, to enable him repay himself the cost of building it, was not used for public _arposes within the meaning of the exemption, because it was ot used solely for those purposes, their Lordships went on to

al public. Then, after reviewing the special conditions of tenure of the club, the judgment concluded, on that point, h these words (2): "Besides, these provisions, coupled with already commented upon, afford tests for determining er or not the land was vested in the respondent as a bare e, for a public purpose only." And then it was pointed out

at, though in the old cases it was supposed that land used for ic purposes, and from which the occupiers derived no individual fit, was exempt from ratability, it was nevertheless always I that all the purposes must be public. The Committee there- were of opinion that the race-course was not exempt from

_In my opinion the same principles apply to the construction of ee. 110, sub-sec. 5. If land is vested in trustees for the purposes "public recreation, health, or enjoyment under such circum- es that the trustees may themselves, for their own individual (1) 2 W.W, & a'B. (L.), 93. (2) 2 App. Cas., 574, at p. 587.

Monica Councin oF SYDNEY v Royan AGri- CULTURAL Society oF New Sourn Wates.

benefit or for that of a special and exclusive class, deri use of the land a beneficial enjoyment beyond that of public, it is not exempt from rating under the provision sub-section.

It is necessary, therefore, to inquire into the nati respondents' title to the land. The land has already be subject of litigation in the case Sydney Municipal Attorney-General for New South Wales (1). In the report case there is a historical summary to which we have been and to which both parties claimed leave to refer, for any information for the purpose of the construction of then ents' special Act. The facts are set out in the judgment, 1 Crown Lands Alienation Act 1861, sec. 5, the Governor empowered (with the advice of the Executive Council) by "not the Gazette" to "reserve or dedicate in such manner as best for the public interest any Crown Lands for" a num purposes, including "for any pasturage common, or for health, recreation, convenience, or enjoyment, or for the int

Bar, was dedicated ae public purposes, the purposes b "permanent common." By the Public Parks Act 1854, which recites that it is or pe that bodies of trustees with perpetual succession should be en for the purpose of holding, managing, and protecting lands,

without any grant by the Crown, appoint trustees of li dedicated, and that they should be a body corporate. - provided that the trustees so appointed should have certain being in substance the powers of absolute owners, except purposes of alienation, in respect of the land placed in trust) them.

of the area already mentioned. In September, 1881, they ast executed a lease of the area now in question to the re

for the purposes only of shows or exhibitions, and the respondents

• undertook to keep the land drained and cleaned and to comply ith the Council's regulations as to access by the public. The question was then raised whether the lease by the Council, . who were trustees of the land which was held by the Privy
• Council to be dedicated for the purposes of public recreation, health or enjoyment under the Public Parks Act, was valid or _ inyalid. The Chief Judge in Equity held that the lease was bad and declared accordingly, but the Privy Council on appeal were _ of opinion that there was no objection to the lease. Before that time the present respondents had been incorporated _ by an Act of 1869, which is not numbered, and I assume, there- fore, is to be taken as in one sense a private Act. It recited that a society called the Agricultural Society of New South Wales had been formed with certain rules and by-laws at Sydney for the encouragement and improvement of agriculture, and for promoting _ the success of pastoral and farming pursuits in the colony, and also for holding exhibitions of live stock, of agricultural, horti- cultural, and pastoral produce, of minerals, and of arts and manufactures. It then proceeded to declare that the President, Vice-Presidents, Governors, and members of the Society for the time being should be incorporated by the name of the " Agricul- _ tural Society of New South Wales," with all the privileges and liabilities of a corporation. It then provided that the then present tules and by-laws should be the rules and by-laws of the cor- poration, save and except so far as they might be lawfully altered or repealed or might be inconsistent or incompatible with or repugnant to any of the provisions of the Act or the laws of the colony. The sixth section provided that the corporation should have power to purchase, acquire, and hold lands, and any interest therein, and to sell and dispose of them, and that all lands then the property of the Society should become the property of the corporation. There was also a provision that, in the event of the funds and property of the corporation being insufficient to meet its engagements, each member should be liable to contribute, over and above his annual subseription, a sum equal to the subscription, towards liquidating the liabilities of the cor- poration, and should not be otherwise individually liable. Express

MonicreaL CounciL or Sypyey v. Royan Acri CULTURAL Socrery or New Sourn Wates.

power was given to the corporation to borrow money by mortgage, subject to certain limitations. This, therefore, was a corporation established for certain de purposes. Amongst its powers were the power to hold pro to incur liabilities, and to mortgage property, and involved sarily in that was the right to expend money on almost any pu that they might think conducive to the objects of the Socie all these purposes a revenue was necessary, much larger than likely to be obtained from the contributions of members, Society expended in carrying out its objects many thousan pounds. Those objects, as they are at present set out in rules of the Society which are attached to tho special include (rule 2, sub-sec. 3): "To purchase, take on least otherwise acquire, and to lay out and improve, such lands premises as may be required for carrying on the objects o Society." The lands so acquired may clearly be anyw! New South Wales. Sub-sec. 4 mentions the holding of "e tions in Sydney or elsewhere for the display of horses, catt sheep, and other live stock; wool, agricultural produce of all kin and machinery ; together with such other subjects of manufaet produce, or the arts as may be deemed desirable ; and to estab in connection therewith a market for the sale of exhibited stock, machinery," &. Sub-sec. 5 includes the encouragement skill in farm labour, and showing new machinery in operatic and so bringing it into notice, and sub-sec. 6 provides for publication and distribution amongst the members of # and kindred societies, of the transactions of the Society. | much for the objects of the Society. The privileges, amor other things, include, as appears from rule 7, the right to vote elections of office bearers, of free admission to the library reading room, and to the Society's exhibitions and other en' ments held in the grounds, on production of the member's for the current year. It is a matter of common knowledge in institutions of this kind the privileges of members are s times very considerable, and much more comfortable accommo tion is provided for them than for other persons. But whe the privileges are small or great, it is clear that the membersh a beneficial enjoyment of the property as distinguished from t general public. a

4] OF AUSTRALIA. is was the Society to which the Municipal Council granted se of the land for a period to last during the will of the suncil, or until notice given as provided in the lease. The yeiety had power to determine the tenancy after fourteen days' tice in writing. "After the decision of the Chief Judge in Equity, to the effect 'at the Council as trustees for public purposes under the Public "arks Act had no right to make 'this lease, the legislature inter- "Sed by passing an Act 56 Vict. No. 8, which declared that the 'nd should yest in the respondents for a short period. This was ~*temporary Act. In the following year it was continued by the "Yet 57 Vict. No. 15, and, in 1902, by the Act No. 45 of that year, ""4e land was vested in the respondents for a term of twenty-one "sars from 30th June, 1894. It is clear that when the Sydney orporation Act was passed it had no reference to this particular *sece of land, although it is within the boundaries of the City of Sydney, for at that time the Corporation were themselves the '"eustees of the land. Now, the nature of the title of the respond- seats to the land is to be determined with reference to the Act No. «1x5 of 1902, having regard to their own constitution and the pur- "ses for which they were established as a Society, and of which ne legislature was aware. Sec. 3 of the Act declared that the land question should be deemed to have vested and to vest in the -gricultural Society of New South Wales for a period of twenty- ene years from 30th June, 1894, and that "all rights of common 1 respect of the said lands" were thereby suspended during that iod. These last words taken in connection with the succeeding ections had the effect of exhaustively declaring the purposes for i the land might be used during that term. Whether the

iety held the land as tenants of the trustees (the Corporation) as quasi-trustees themselves, it can hardly be contended that

were trustees of it solely for the purposes of public recrea- , health, or enjoyment. The trustees were the Corporation of y: The Society were in the position of lessees for the Wl s of their own Society. The effect of the Act No. 45 of 902 is to declare them statutory lessees, that is, in the sense that he land was vested in them for a time. If there were no more nthe Act, they would take the land for the purposes of their

MontcrpaL CouNCIL OF SypNEy Roya AGri- CULTURAL Socrery oF New Sourn Wats.

Monicipat Counct oF SypNey v Royat AGri- CULTURAL Society oF New Sovra Wares.

Society, that is, for the purpose of furthering the object Society, including such benefits as were conferred up members, and clearly they had power to expend the derived from the public use of the land in any way con with the purposes for which the land was given them, { improvement of the land itself, or for carrying out the other of the Society, such as holding shows in any part of the eo and for any other purposes not inconsistent with the obje the Society. But the Act of 1902 prescribed, in my opi exhaustively, the purposes to which the lands of the Society be put. See. 4 provides that the Society may ocey use the land for the purpose of holding shows and exh agricultural, horticultural and pastoral produce, implement machinery, minerals, arts and manufactures, and live sto for such other purposes as the Minister may sanction, a admit the public thereto, subject to such charges and condi as shall be approved by the Minister, provided always th horse races or pony races shall be held on the said land." same section requires that they shall keep the land cle free from offensive matter. Now, that section prescribes poses for which the land may be used. Shows and exhibit are the primary purposes, with such other purposes as the Min may sanction, and the Society must admit the public on pay of a charge for admission. But it is quite clear that whi charges are imposed go into the coffers of the Society, and b subject to its obligations, and may be applied in accordance the Society's rules. The Act contemplates that the Society make a revenue from the land, and says nothing about what are todo with it. The next section confirms the view that may make profits, which they must devote to the p the Society. It provides that if the Society fails to co with the provisions of sec. 4, or if the lands are used or oce for any purpose other than those prescribed by the if the Society "shall sell, lease, mortgage, assign, charg otherwise deal with or dispose of the land or any part there attempt to do so or suffer the land or profits to vest in or b payable to any other person," or to be taken in execution, ori Society shall cease to exist, the lands shall revest in the Or

That clearly recognizes that they may derive profits from the land. One asks then what is the nature of the interest of the Society in e land? A piece of land is given them by the legislature for certain purposes, with express power to receive money for the admission of the public, and without any control upon the expenditure of these profits except that they are not to do or suffer anything whereby the land should become vested in any other person or persons. I think the cases clearly show that under those cireumstances the members of the Society had a beneficial enjoyment of the land beyond that of the general public, There was a good deal of discussion as to the words "such other purposes as the Minister may sanction," and it was said that they must mean purposes ejusdem generis with those mentioned. But this argument was not very strongly pressed in this Court, though it was favoured in the Supreme Court. If the only other purposes were shows and exhibitions of that kind, there might be some force in the contention. But it cannot be disputed, since the decision in Sydney Municipal Council v. Attorney-General for JV.S.W. (1), that the land might be used for any purposes of a quasi public nature as distinguished from private. As a matter of fact the Society derived a very considerable rental from letting a portion of the ground for the use of the mounted police of Sydney for stabling purposes. It was suggested that that might be ultra vires, but it is not necessary to determine in this case, what limit, if any, must be put on the meaning of the words "other purposes." It is sufficient, in the view I take of the case, to say that the 'members as such had conferred upon them by the legislature a beneficial enjoyment of this land. They are very much in the position of lessees whose lease is subject to restrictive covenants. The restrictions are certainly great, but the lease is a beneficial one notwithstanding.

For these reasons I think that they are not trustees of the land for the purposes of public recreation, health or enjoyment within the meaning of sec. 110 of the Sydney Corporation Act.

The learned Judge who delivered the judgment of the Supreme Court said that he understood that the point that the Society were trustees of the lands for purposes of public recreation, health

or enjoyment was conceded. If that were so, of cours would clearly be within the meaning of the exemption, a exemption would not be taken away by a mere misuse of and I quite agree with the Supreme Court in that respe the question is what was the nature of the title of the If they commit a breach of their trust, the remedy is provi sec. 5 of the Act, and also by the general law applicable to tra But we are assured that this is a misapprehension, becaus really the only point in the case. The whole question of liability depends on the nature of their tenure, that is, wh they are trustees for such purposes or not. For the have given I think that this land does not come wit exemption.

Reference was made to the use of the word "solely" in the section of the Sydney Corporation Act with reference to h and buildings used for public worship. But that is not s to change what is, im my opinion, the clear construction of words "vested in trustees for the purposes of public recreat health and enjoyment."

For these reasons I think the appeal from the District Co should have been allowed, and that this appeal shot allowed.

Barton J. I agree that the appeal should be allowed, for the reasons that the Chief Justice has given.

On one part of the case I should like to add a few words what has been said by the Chief Justice. I do not think necessary to consider whether it is within the power of Minister under the words "for such other purposes as_ Minister may sanction," to authorize the use of this land f purpose which is not one of public recreation, health, or enj ment, within the meaning of sec. 110 of the Sydney Corpo Act. The consideration of that matter may involve diff questions which it is not necessary now to enter upon, on the other ground it appears to me that the appellants h made out a very clear case.

110, sub-see. 4, makes all land, whether occupied or not, H. ©. or A.

the city of Sydney "ratable property." Sub-sec. 5 is ee

fore an exception, and the Society must bring themselves \uyicrpan

ithin that sub-section before they can escape the taxation POuRCE CS 'imposed generally by the Act. ss a a

. It may be taken that, since the decision in Sydney Municipal courorar Council v. Attorney-General for N.S.W. (1), commonly known as pee Milroy's Case, the holding of shows and exhibitions on this Wats. Jand is a purpose of public "recreation, health and enjoyment." o'connor 3. But that does not settle the matter, because according to the

rule laid down in Mayor &e. of Essenden v. Blackwood (2), for the interpretation of a section of this kind, there is no exemption

from taxation unless the lands are vested in trustees solely

for these purposes. Dr. Cullen endeavoured to distinguish the

_ words of exemption in that case from those of sub-see. 5 of sec. 110

inthis case. But I find it impossible to see any distinction. The words in that case were " lands the property of Her Majesty occupied or used for public purposes." It was held there that the words must be considered as meaning used solely for public

_purposes. In the present case the words in sec. 110, " vested in

trustees for purposes of public recreation, health, or enjoyment,"

~ seem to me to come exactly within the same principle, and must

be construed in the same way. The English decisions on the subject of rating are not, as has

"been already pointed out, altogether applicable to circumstances

similar to those now under consideration. But, according to the principle which was followed by the Priv case to which I have just referred, one element for consideration

"always is, to what purposes is the money produced by the use of

• the land devoted. If it is not devoted altogether to public pur-
• poses or trusts, then there is a beneficial interest in the members,

which has always been held sufficient to prevent the exemption

"applying. In the case just referred to Lord Hobhouse, in delivering

judgment of the Privy Council, said (3), quoting from a decision of Lord Campbell in Reg. v. Harrogate (4), "you have to shew

'that all the purposes to which the money was applied are public.'

(1) (1894) A.C., 444. (3) 2 App. Cas., 574, at p. 588. (2) 2 App. Cas., 574. (4) 2E.& B., 184.

Now. in applying that test, we must see not only that is used for the purposes of the Society, but that it is vested for the purposes of public recreation, health and enjoym: solely for those purposes, and also that the proceeds whie derived by the Society from the use of the land are to be dey also to the purposes of public recreation, health and enjoy To determine this question it is only necessary to look at. constitution of the Society. It is constituted by its own Act, for a variety of purposes, which are in one sense public. learned brother the Chief Justice has explained in detail what th purposes are. It is quite clear that all moneys received byt Society may be devoted to any of those purposes,

The land in question is vested in the Royal Agri Society by the Act No. 45 of 1902, (I do not think it at present to refer to the earlier Acts), for a period of twenty years subject to certain conditions. These conditions are y definite. One stated in sec. 4, is that the Society may oceuj and use the land for the purposes of holding shows of agriculit and pastoral produce, stock, machinery, arts, manufactures, such other purposes as the Minister may sanction, ani charges for admission, provided that certain race meetings are to be held there. The next condition is in the next sul that the Society are to keep the land clean and free from off matter, that is to say, in a sanitary condition. The next sub- is a restriction on selling, mortgaging or dealing with or of the land. In the latter part of the same sub-section it provided that if they shall do anything whereby any part of land or of the profits thereof shall vest in or become pay: to any other person, or if the Society should cease to exist, land shall upon notification in the Gazette revest in His Maj These are the only conditions imposed upon their dealing the land,and the only conditions which restrict their right to disp of the profits derived from its occupation in any way they th fit. Clearly they have the right, so long as they do not infring any of these conditions, to dispose of the profits in any way # please in carrying on the operations of the Society. It is quite that we have to consider, not what use they made of the land, but what purposes it is vested in them, taking them to be trustees f¢

the purposes of sec. 110 of the Sydney Corporation Act. The H.-C. pres terms on which the land is vested in these trustees are to be as ascertained entirely from the Act vesting it in them and from the yoyrcrpan "Act by which the Society itself is incorporated. And, as there is power under the Society's Act to apply any of the profits derived pe aia "from the occupation of this ground to the purposes mentioned in cunruran that Act, it appears to me that there is an obligation imposed to pepe apply these profits to purposes, which, although in themselves Wa¥5*. public ina sense, are not the public purposes set out in sec. 110 of o'connor J. the Sydney Corporation Act. Inasmuch as this land is to be

'applied to the purposes of the Society, which are not purposes of

public recreation, health or enjoyment, it seems to me impossible, in

"view of the decision in the case of Mayor «te. of Essenden v.

• Blackwood (1), to hold that the Society have brought themselves

'within this exception. When the expression "beneficial interest "

is used, it is not intended to mean a personal interest. There

may be a beneficial interest, as was pointed out by the Chief

'Justice, in the sense of a privilege or privileges enjoyed by the

members, beyond those enjoyed by the general public. If the

'Society has such an interest in the land that it may apply the

fits derived from it to its own purposes, which though public

'in one sense, are not enjoyed equally by the public in general,

»then there is a beneficial interest such as will prevent the appli-

cation of the exemption in sub-sec. 5 of sec. 110 of the Sydney Corporation Act.

For these reasons I am of opinion that the decision of the

'Supreme Court was erroneous, and that this appeal should be ni

Appeal allowed with costs. Judgments of the District Court and Supreme Court reversed. Case remitted to the District Court.

Solicitors, for appellants, Dawson, Waldron &: Glover. Solicitor, for respondents, H. Dawson.