Borserio v Minister for Lands of NSW

The High Court of Australia considered an appeal from the Supreme Court of New South Wales concerning an application by Agostino Borserio to convert a Crown lease into a conditional purchase under section 184 of the *Crown Lands Consolidation Act 1913* (NSW). Borserio had applied for the conversion while he was the registered holder of the lease, subject to a mortgage. However, prior to the confirmation of his application, he had contracted to sell the lease and subsequently transferred it to a third party, Livermore. The land was also temporarily reserved from sale after the application was lodged. The core dispute revolved around whether Borserio's application remained valid and capable of confirmation after he had divested himself of his interest in the Crown lease.

The legal issues before the court were whether Borserio was competent to make the application for conversion, whether a subsisting application capable of confirmation existed after he transferred the lease, and consequently, whether the application should be confirmed. The court also considered, though did not definitively rule on, related issues concerning the good faith of the application and the effect of the reservation from sale. The primary question was whether the applicant needed to maintain their status as holder or owner subject to mortgage continuously from the date of application until confirmation.

The High Court held that the right to convert a Crown lease into a conditional purchase under section 184 is not exercised merely by lodging an application, but requires the application to be "completely made," meaning it must be carried through to the point of confirmation. Consequently, an applicant must possess the requisite qualification as a holder or owner subject to mortgage not only at the time of application but also continuously until confirmation. The court reasoned that the conversion itself only takes effect upon confirmation by the local land board, even though it has retrospective operation to the date of application. Therefore, by transferring the Crown lease to Livermore before confirmation, Borserio ceased to be the holder or owner, rendering his application incapable of confirmation.

The High Court dismissed the appeal, affirming the decision of the Supreme Court. While the Supreme Court had answered question (2) as "There was an application in existence at the date when the Local Land Board sat to make its determination but that application was incapable of confirmation," the High Court varied this answer to "No," concluding that there was no subsisting application capable of confirmation. The court ordered that the appeal be dismissed with costs, subject to this variation.