Will. IV. c. 27, which enacts that the right to bring an action H. C. shall be deemed to have first accrued when the owner of the paper title shall have been dispossessed or have discontinued his possession. Now, the dispossession and discontinuance contem- plated by this section have been held to connote the existence of a person to be protected by the Statute who has dispossessed such owner and kept him dispossessed for a period of twelve years, or the abandonment of possession for such a period by the owner and the possession by some other person during the same period: M'Donnell v. M'Kinty 1; Trustees Executors and Agency Co. v. Short 2. We think on the evidence that the defendant has nct established this possession by himself as apart from the alleged want of possession by the plaintiffs and their predecessors in title, and on this ground also we think he has failed to establish his right to protection under the Statutes of Limitation.
The appeal, in our opinion, should be dismissed with costs.
Appeal dismissed with costs. Solicitors, for appellant, R. S. Haynes &Co. Solicitor, for respondents, A. S. Canning.
ment Act 1903 (N.S. W.) (No. 15 of 1903), sec. 31.
* By sec. 5 of the Crown Lands Act of 1884 it is provided that "Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act."
By sec. 6 it is provided that "The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose authorized by this Act and subject in every case to its provisions."
By sec. 26 of the Crown Lands Act of 1895, as amended by sec. 31 of the Crown Lands Act Amendment Act 1903, it is provided that " The Governor may, upon the recommendation of the Local Land Board, under this sec- tion, grant leases of Crown lands, which, by reason of inferior quality, heavy timber, scrub," &., " are not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improve- ment thereof. The granting of the leases shall be subject to the provisions
Then are set out the following provisions (inter alia) -
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Bull v Attorney-General (NSW) [1913] HCA 60
Case
[1913] HCA 60
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the validity of certain "improvement leases" granted by the Crown. The Attorney-General for New South Wales sought possession of the lands from the defendants, who were the successors in title to the original lessees. The dispute centred on the Crown's purported extension of original 12-year improvement leases for a further 16 years, which the Crown later argued were void.
The primary legal issues before the High Court were whether the purported extensions of the improvement leases were void or merely voidable, and consequently, whether the Crown was entitled to immediate possession of the land. A related issue was whether the defendants were entitled to reimbursement for any expenditure made on the land in reliance on the validity of these extended leases. The Court was required to interpret section 44 of the Crown Lands Act 1895, which dealt with the voidability of Crown land purchases and leases due to breaches of statutory provisions.
The Court, by majority, held that the purported extensions of the improvement leases were void, not merely voidable. The reasoning was that the extensions were granted without the necessary recommendation from the Local Land Board and, crucially, were for a term that commenced at a future date, contrary to the requirements of section 26 of the Crown Lands Act 1895. The Court found that section 44 of the 1895 Act did not operate to validate transactions that were fundamentally unauthorized or prohibited by statute, but rather applied to irregularities in the course of an otherwise valid transaction. Therefore, the leases were considered nullities, and the Crown was entitled to possession. The Court also found that the defendants were not entitled to reimbursement for expenditure, as the purported extensions were void from their inception, and there was no evidence of expenditure induced by the Crown's conduct after the Crown had clearly indicated its intention to challenge the validity of the leases.
The appeal was dismissed with costs, and the decision of the Supreme Court of New South Wales was varied to the extent that the purported extensions were declared void, and the Crown was entitled to possession of the land.