Walsh v Alexander [1913] HCA 24

Walsh v Alexander [1913] HCA 24 - HCA 1913 case summary — Zoe

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of the grant," "obligations under the grant," recur at intervals, - and refer, without doubt, to the obligations of the "grantee, his heirs and assigns." ake, then, the power to make regulations given by the same section. The regulations may provide for - "exemptions from the performance of the aforesaid obligation or for the relaxation thereof" in cases of "inability, difficulty, or hardship," and then follows a recurring use of the words "exemp- a tion or relaxation." Now let us turn to sec. 3 of the Act of 1908, sub-sec. (3) (¢). By it the term of residence is to be reduced by the period during which continuous residence has been performed _ "by the applicant upon the homestead selection or grant." The - term applicant is there used to denote, not only the applicant for a homestead selection before grant, but obviously the applicant who has become a grantee. Is he identical with the "grantee, his heirs and assigns?" In the homestead grant (Form 12, in which form the appellant's homestead grant is framed) the person who _ is recited to have "applied for a homestead selection" is the - person to whom, " his heirs and assigns," the homestead grant is issued, and on that person, "his heirs and assigns," rest the obligations of the grant. So we have the "applicant" in see. 17 of the Act of 1895 identified with the "grantee, his heirs and assigns," in the same section ; and in sec. 3 of the Act of 1908 we - have the same term "applicant " applied to the person performing continuous residence upon the homestead selection or grant, which is the obligation of the deed. It is plain then that "applicant" in the earlier section and the same word in the later one denote the same person - the grantee, his heirs and assigns. - Hence the obligation upon the applicant must also be upon his - heirs and assigns; that is, the obligation cannot be held to be 2 exclusively personal to the "applicant." If he has sold while - still grantee, his transferee is equally designated by the term "applicant," and the transferee can go on performing the obliga- tion of residence, and may receive the concession that his term of 3 residence (i.e., ten years) may be reduced by the period during which continuous residence has been performed by him or his : transferor "upon the homestead selection or grant up to and imme- diately preceding the date of . . . confirmation." 'This view is strengthened by the proviso to sub-see. 3 (c): " Provided that the

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instigation of the plaintiff or not, could not constitute bond fide residence on a selection within the meaning of the Act. The present case then resolves itself into this: - Was the resi-_ dence of Walsh on the homestead grant for approximately the last - nine months of the period of ten years a merely colourable pre- tence to comply with the requirements of the Act, or was it a substantial compliance according to the true statutory conditions? - Now, that depends, in my opinion, on two things. The first is a matter of fact; the second, a question of law. The matter of fact is the nature of the continued residence of Walsh agreed upon in the contract. The main purpose of Walsh's agreement to com- plete ten years' residence, and immediately - that is, immediately thereafter - to apply for a conditional purchase, was that the statutory condition should be fulfilled. There is nothing to show that this was not to be a real fulfilment by Walsh having his home and place of abode on the land. The implication is that, it was to be real. The writing across the face of the document referring to possession, must be taken as secondary to that, and as promising possession of the property purchased so far as was" consistent with the main purpose of the stipulation to complete. " Possession " does not necessarily connote personal occupation. Lake v. Dean (1) is an illustration. The headnote sufficiently explains it: - 'The plaintiff agreed to sell the defendant an_ orchard, described as being in the ' occupation of L.P.. and that the purchaser should have ' possession' on the day appointed for completion. Held, that 'possession' did not mean 'personal - occupation, and a decree for specific performance was made against the defendant, although the plaintiff was unable, by _ reason of L.P.'s tenancy, to put him in actual occupation of the premises." a It has frequently been determined that possession must be con- sidered in every case with reference to the peculiar circumstances of the property. The latest case is Kirby v. Cowderoy (2). Without assuming a deliberate scheme to deceive the Crown, the promise as to giving possession must be construed so as to be consistent with a true residence by Walsh on the land as his home and place of abode. (1) 28 Beav., 607. (2) (1912) A.C., 599, at p. 603.

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the statutory right has accrued, has to satisfy the Crown that the conditions imposed by the legislature have been duly performed by the person or persons who for the time being was or were required or authorized to perform them. 'This is reasonable, the contrary construction is not; and there is a "rule that where the language of an Act of Parliament is equivocal, the legislature must be supposed to have intended to enact that which is reasonable" (see per Lord Campbell L.C. in Eastern Counties &c. Companies v. Marriage (1)). Then, says sec. 17, the grant is to be issued to an applicant, who has duly obtained the certificate. If this "applicant" may, in the case of the occupation period, be a son of the original applicant, with a right of linking on his father's residence with his own, and if this is clear, why should not the legislature be presumed to have meant the same thing in the case of an absolute grant merely converted into a different tenure? In my opinion, having regard to the meaning of the corresponding phrase in the earlier Act, and to the provision already mentioned whereby the assignee of a homestead grant may have to submit to re-appraisement by reason of previous residence of his predecessors, the expression "the period during which continuous residence has been performed by the applicant" means the period during which the " registered holder" for the time being has duly performed the obligation of residence. This is much strengthened by remembering that the owner of the selection ungranted (see sec. 23 of the Act of 1895 as well as sec. 17 of the Act of 1908) has the same right of conversion as the registered holder of a grant, and by the reference to exemptions and relaxations. I think Mr. Harvey's contention is well founded, that the reference in paragraph (b) of sec. 3 (3) of the Act of 1908 to the general provisions of the Principal Acts is, after the conversion is effected, and that the confirmation by the Board relates to the conditions enacted by the Act of 1908. And if, as already shown, the owner of the ungranted selection may link on previous possession to obtain a grant, it is inconceivable that he cannot do so to obtain a conditional purchase. And if he can, why cannot he do so, if he first gets a homestead grant and then desires to proceed to a conditional purchase ?

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Judgment (105 paragraphs)