Gillen v Laffer - [1925] HCA 50

ON APPEAL FROM THE SUPREME COURT OF Crown Lands-Soldiers settlement-Agreement for sale of land-Payment by

instalmentsCancellation for non-payment of instalments-Notice demanding payment-Sufficiency of notice-Cancellation for incompetency-Audi alteram partem-Registration of forfeiture or determination of Crown lease-Effect of Sept. 30.

registration-Discharged Soldiers Settlement Act 1917 (S.A.) (No. 1313), secs. 2, 16-Crown Lands Act 1915 (S.A.) (No. 1199), secs. 63, 198-Real Property Act 1886 (S.A.) (No. 380), sec. 94-Regulations of 2nd Dec. 1920 (S.A.), reg. 13 (h)

An agreement was made between the Minister of Repatriation for South Australia and the appellant under the Crown Lands Acts 1915-1919 (S.A.) and the Discharged Soldiers Settlement Acts 1917-1919 (S.A.), for the sale to the appellant of certain land, the purchase-money being payable by instalments. The agreement contained a clause providing that, if any of the instalments should be unpaid and in arrear for more than six months after the day when it was made payable, "the purchaser having had at least three months previous notice in writing demanding its payment," the agreement might be cancelled by the vendor. The appellant being in arrear with certain of the instalments for more than six months, a notice was given to him by the Commissioner of Crown lands (who was also in fact the Minister for Repatriation) notifying an intention to cancel the agreement unless all arrears were paid within a certain time, and setting out the amounts that would in the event of forfeiture taking place be payable under the agreement up to the date of

37 CLR 211

Held, by Knox C.J., Higgins and Starke JJ., that the notice was ineffective to support a cancellation of the agreement

By Knox C.J. and Higgins J., on the ground that it contained no demand of payment

By Starke J., on the ground that it was not made by the Minister of Repatriation.

The agreement also, as was required by regulations made under the Discharged Soldiers Settlement Acts, contained a provision that "if at any time within a period of ten years from the date of this agreement the vendor is satisfied on such evidence as he deems sufficient that by reason of incompetency or personal disability the purchaser is incapable of managing the said land with advantage to himself or that the purchaser has neglected to work the said land satisfactorily or has been guilty of serious misconduct during his occupation thereof the vendor by notice in writing given to the purchaser may determine this agreement," &.

Held, by Knox C.J., Rich and Starke JJ. (Higgins J. dissenting), that the clause could not be acted upon without the appellant having an opportunity of being heard and of meeting allegations to his prejudice.

Sec. 94 of the Real Property Act 1886 (S.A.) provides that ** the Registrar- General, upon receipt of notice from the Commissioner of Crown Lands that any Crown lease has been lawfully forfeited or determined in whole or in part, shall make an entry to that effect in the Register of Crown…

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.

Continue reading Gillen v Laffer

Details

AGLC: Gillen v Laffer [1925] HCA 50
Case: [1925] HCA 50
Decision Date: 17 December 1925

CaseChat Overview and Summary

The case of *Gillen v Laffer* concerned an appeal from the Supreme Court of South Australia to the High Court of Australia. The dispute arose from an agreement for the sale of land between the Minister of Repatriation for South Australia and the appellant, Mr. Gillen, under which the purchase price was to be paid by instalments. The appellant was ejected from the land, and the respondent, Mr. Laffer, who was the Commissioner of Crown Lands and Minister for Repatriation, sought to justify this action by asserting the agreement had been lawfully cancelled or determined.

The High Court was required to determine several legal issues. Firstly, whether a notice issued by the respondent was a sufficient demand for payment to justify cancellation of the agreement for non-payment of instalments, as stipulated in clause 24 of the agreement. Secondly, whether the agreement could be lawfully determined by the respondent under clause 22, which allowed for cancellation due to the purchaser's incompetency or neglect, without affording the appellant an opportunity to be heard. Finally, the Court considered the effect of registering a forfeiture or determination of a Crown lease under section 94 of the *Real Property Act 1886* (SA).

The Court held that the notice demanding payment was ineffective to support the cancellation of the agreement. Knox C.J. and Higgins J. found that the notice lacked an explicit demand for payment, while Starke J. concluded it was not issued by the correct party, the Minister of Repatriation. Regarding the determination of the agreement under clause 22, Knox C.J., Rich J., and Starke J. (with Higgins J. dissenting) determined that the clause could not be acted upon without providing the appellant an opportunity to be heard and respond to any allegations against him. The Court also affirmed that section 94 of the *Real Property Act 1886* (SA) presupposes a lawful forfeiture or determination and does not validate an unlawful one.

Consequently, the High Court allowed the appeal, reversing the decision of the Supreme Court of South Australia. The Court found that the respondent had failed to establish any lawful grounds for the cancellation or determination of the agreement, and therefore, the ejection of the appellant was unjustified.

Orders