Wingadee Shire Council v Willis [1910] HCA 35

Wingadee Shire Council v Willis [1910] HCA 35 - HCA 1910 case summary — Zoe

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in which all transfers are recorded. With regard to some tenures, as to which the consent of the Minister to a transfer is required, provision is made that if the transfer is by way of mortgage a document embodying the whole - transaction shall be sent to him, but there is no such provision with regard to improvement leases. It appears, however, to be the practice in the case of transfers by way of mortgage to ente on the register a note to that effect. I cannot doubt that person to whom a Crown lease is in fact transferred becomes # holder of it as regards the Crown and the public, whatever m: be the nature of any collateral agreement between himself the transferror. The term "holder" is frequently used in the Crown Lands Acts in this sense. The next objection taken was that the Crown Lands A forbid a married woman living with her husband to become the holder of an improvement lease. This was the only point dealt with by the learned Judges in the Full Court, who thought the objection fatal to the plaintiffs' case. The enactment relied upon in support of it is sec. 47 of the Crown Land Act 1889, which first provides that a marri woman living apart from her husband under an order for judici separation may out of moneys belonging to her for her separate use "purchase or lease land conditionally or otherwise," an then proceeds: " Except as aforesaid a married woman shall 1 be entitled to lease or conditionally purchase Crown lands un the Principal Act or this Act." Then follows a proyiso which has been much discussed in the Courts, but to which I need nm now particularly refer. : In Ex parte Luke (1), approved in Phillips v. Lynch (2), was held that, so far as regards the acquisition of land by a married woman by way of conditional purchase, this enactm referred only to acquisition by direct dealing with the Crown and not to acquisition by transfer from a former holder. Th learned Judges of the Supreme Court thought the present (1) 1S.R. (N.S.W.), 322. (2) 5 CLR, 12.

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is no longer Crown land within the interpretation clause of the Act of 1884, whereas land comprised in an improvement lease is still for certain purposes Crown land. It would seem, however, that the same reasoning which led the Court in Luke's Case (1) to the conclusion that the words "not entitled to condition- ally purchase Crown lands" mean "not entitled to enter into a direct dealing with the Crown for the acquisition of land not already subject to that tenure" would lead to a similar conclusion with regard to the words "not entitled to lease Crown lands." Again: it is not at all clear to me that the words "shall not be entitled to lease" &e. are equivalent to "shall not be capable of holding a lease" &e., words used in a similar connection in sec, 124 of the Principal Act, or whether they merely deny to a married woman not judicially separated the right to insist upon a grant of a lease or licence. See the observations of the Judicial Com- mittee in O'Shanassy v. Joachim (2). A further difficulty arises from the words "under the Principal Act or this Act." The tenure of improvement lease was first created by the Act of 1895, which also created two other new tenures called homestead selections and settlement leases. That Act provides (sec. 1) that it is to be read with the previous Acts including that of 1889, and "shall form part of the said Acts." On these words a doubt at once suggests itself whether the disability created by see. 47 of the Act of 1889, whatever it means, was intended to be "made applicable to the new tenures, and the doubt is strengthened when we find that in the case of homestead selections (sec. 14) married women not living apart from their husbands under a decree for judicial separation are expressly disqualified from being applicants, and in the case of settlement leases (sec. 24) only persons "not disqualified by the Crown Lands Acts" may take advantage of the law, while in the case of improvement leases (sec. 26) no disqualification is mentioned. The doubt becomes still stronger when the nature and purpose of an

improvement lease are considered. All these are in my opinion questions of importance, and not free from difficulty, and the inconvenience of deciding them in

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of these two leases to Hayes, who in turn executed a transfer to the respondent. This she accepted and lodged with the Depart- ment. These transactions were completed in 1905. In June of that year the respondent applied to be registered in the Depart- ment as the absolute owner of Leases Nos. 1279 and 1280. The Department declined to comply with this request. It was at that time refusing to register any transaction with respect to improve- ment leases that were, as these four leases were, the subject of inguiry by Mr. Justice Owen as a Royal Commission. Also the Department declined to register at the respondent's request a transfer by her and Hayes, lodged in January 1906, of the two other leases to the N. Z. and A. Land Co. Under see. 2 of the Improvement Leases Cancellation Act, assented to in December 1906, the Commissioner, Mr. Justice Owen, in February 1907, certified that these four, among a number of improvement leases in the hands of various holders, had been granted or had pur- ported to be granted under circumstances evidencing improper acts or serious irregularity, and that such leases should be dealt with under the Act. This certificate having been notified in the Government Gazette of 27th February 1907, the leases thereupon became cancelled and forfeited to the Crown under the section mentioned. The same Act, in sec. 3, provides that on the cancel- lation of the lease " the former lessee" shall become the holder of a preferential occupation licence of the land. At the trial the Crown lands official already mentioned, being the officer in charge of the branch which dealt with improvement leases, pro- duced the office register of such leases containing the regis- tration of those now in question in the name of the respondent. The register contained also the date of the cancellation of the leases, which constituted the former lessee the holder of prefer- ential occupation licences of the land which had become forfeited. Extracts from the valuation and rate book of the appellant shire, and the notices of the valuation and rate for 1907 were also exhibits at the trial.

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in one of its governing Departments, such as the Department of Lands, as a person holding land which by legislation of the State is rateable, and rateable in the hands of a holder by the tenure she has so asserted, I do not think she can be heard afterwards in denial of her consequent liability as such a holder under the legislation which gives the subordinate authority of the State power to exact the rate. In enabling a shire to exercise its powers of rating, the legislature has provided that all land, with certain exemptions which are not material here, shall be rateable, whether the property of His Majesty or not: Local Government Act (No. 56 of 1906), sec. 131 (1). The rate is to "be made and levied in and for each year, commencing the first day of January": see. 150, sub-see. (3). The Statute requires by sec. 144 (1) that "The amount of any rate under this Act shall be paid to the Council by the owner of the land in respect of which the rate is levied (including the Crown) except where the land is held under lease or licence from the Crown, in which case the rate shall be paid by the holder of such,lease or licence," &. Was Mary Willis the "holder of a lease or licence" from the Crown? She has procured herself to be registered as transferee of these leases in the proper book of the Lands Department. I say the proper book because it is, as the entries produceed indeed show, the book which the Department keeps for the registration or record of improvement leases and of transfers thereof : a record without which the Department could not administer the Jaw in this regard. When the regulations prescribe the lodging of transfers, with the local land agent in respect of some tenures, and with the Under Secretary in respect of others, the purpose is clearly to enable the leases and the dealings with the leased lands by way of transfer to be traced by the record of them: see regulations 305 to 320. The last-named regulation implies that transfers regular within its terms will be registered and recog- nized, and by reg. 321 the Minister is empowered to refuse to admit any transfer to registration unless satisfied of its validity.

At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

HENRY CHARLES SMITH . . . . APPELLANT; DEFENDANT, ' axp THE PERPETUAL TRUSTEE CO. LTD. axp) p H.C.orA. ALFRED HENRY DELOHERY Jc 1910. PLAINTIFFS,