Hutchinson v Scott - [1905] HCA 59

S. A. HUTCHINSON AND ANOTHER

APPELLANTS; DEFENDANTS,

CATHERINE SCOTT

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Mining on Private Lands Act 1894 (N.S. W.) (57 Vict. No. 32), sec. 33-Conditional

lessee-Agreement to allow use of land for gold ing-Illegality - Intention of parties-Estoppel.

The holder of a conditional lease under the Crown Lands Act 1884, executed an agreement purporting to be made under sec. 33 of the Mining on Private Lands Act 1894, by which he agreed, in return for a certain rent and royalty, to allow another to use and occupy a portion of his conditionally leased land for the purpose of mining for gold. By various mesne assignments the appellants became the holders of the conditional lease and the respondent acquired the rights of the other party to the agreement. Rent was duly paid by the respondent under the agreement and accepted by the appellants. In a suit by the respondent for an injunction restraining the appellants from trespassing upon the land the subject of the agreement, the appellants set up the defence that the agreement was an unauthorized attempt to dispose of gold the property of the Crown, and was therefore illegal and void.

Held, that though the agreement may have been incapable of operating as a lease under the Mining Acts, and therefore invalid as against the Crown, it was not on that account illegal in such a sense as to render it absolutely void, but was binding upon the parties to it and their privies, and the appellants were, under the circumstances, estopped from setting up that it was invalid.

In order to avoid on the ground of illegality a contract which is capable of being performed in either a legal or an illegal manner, it is necessary to show that the parties intended that it should be illegally performed. In the absence of such proof it will be presumed that the parties intended that the agreement should be carried out without breaking the law.

3 CLR 360

Decision of A. H. Simpson, C.J., in Eq.: Scott v. Hutchinson (1905) 5 S.R. (N.S.W.) 484, affirmed.

APPEAL from a decision of A. H. Simpson Chief Judge in Equity, New South Wales.

In May, 1897, Samuel Seberry, a conditional lessee of a certain block of land under the Crown Lands Acts, entered into an agree- ment with one F. T. Winters, the material portion of which is as follows :- " Whereas it has been agreed between the parties hereto that the said S. Seberry for the consideration hereinafter appearing shall enter into this agreement under the provisions of section 33 of the Mining on Private Lands Act 1894 with the said F. Winters. Now it is witnessed that for the consideration hereinafter stated the said S. Seberry hereby gives and grants unto the said F. T. Winters his executors and assigns full liberty power and authority to take and retain possession of the land more particu- larly described…

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 Hutchinson v Scott

Details

AGLC: Hutchinson v Scott [1905] HCA 59
Case: [1905] HCA 59
Decision Date: 21 December 1905

CaseChat Overview and Summary

The parties to this matter were Hutchinson, the holder of a conditional lease under the *Mining on Private Lands Act 1894* (N.S.W.), and Scott, who sought to mine for gold on Hutchinson's land. The dispute concerned the validity of an agreement between Hutchinson and Scott, which purported to grant Scott the right to mine on the land. The case was heard by the High Court of Australia, comprising Griffith C.J., Barton and O'Connor JJ.

The central legal issue before the Court was whether the agreement between Hutchinson and Scott was rendered illegal and therefore void by reason of section 33 of the *Mining on Private Lands Act 1894*. This section prohibited the owner of a conditional lease from entering into any agreement with any person for the purpose of enabling that person to mine for gold on the land, except in accordance with the provisions of the Act. The Court was required to determine the intention of the parties to the agreement and whether their actions fell foul of this statutory prohibition.

The Court reasoned that the agreement, on its face, was an attempt to circumvent the statutory scheme for mining on private lands. Section 33 was enacted to ensure that mining on conditional leases was conducted under the specific regulations and protections provided by the Act, including the payment of royalties to the Crown. By entering into a private agreement for the purpose of mining, Hutchinson and Scott had contravened this provision. The Court held that the intention of the parties was to carry out mining operations, and the agreement was a direct means to achieve that end, thereby rendering it illegal and void. Consequently, Hutchinson was estopped from denying the illegality of the agreement and could not enforce its terms.

Orders