McEwan v Department of Lands

[1993] QLC 4

[1993] QLC 4

 

  LAND COURT

BRISBANE

5th March, 1993

Re:     Liability to Forfeiture -
  Failure to comply with condition of lease -
  MHPL 533.

Lessees:  MJ and JL McEwan

D E C I S I O N

(Hearing at Cairns)

This is a reference by the Minister to the Court under the provisions of s.32 of the Miners' Homestead Leases Act 1913 - Forfeiture proceedings.
           In the hearing of the matter, no appearance was entered by or on behalf of the lessees.  A copy of the notice of the intention of the Minister to refer the matter to the Court accompanied the reference and proof of service was tendered.  M/s Adele Elizabeth Smout, Registrar of Miners' Homesteads (Cairns), gave evidence of letters and invitations made to the lessees to apply for extensions of time within which to comply with the relevant condition.  The condition which has given rise to the proceedings is one requiring the construction of improvements on the leased land.  The Notice of Approval of the application for the lease which issued on 25th October, 1985, stated, inter alia, that the condition to be fulfilled by the lessees with respect to the land is as follows:

"Within twelve months of the date of this notice you must make improvements on the land of the value of $20,000.  "

By letter of 28th April, 1989, an extension of time within which to fulfil the condition was granted to 31st December, 1989.  On 20th March, 1991, an inspection of the land by a registered valuer in the employ of the Department of Lands showed that the improvement condition had not been complied with.  The only improvements effected on the land comprised a concrete slab valued at $100 and some fencing which was also valued at $100.  No response was received to letters forwarded by the Registrar of Miners' Homesteads to the lessees subsequent to the inspection.
The provisions of s. 32 of the Act are similar to the provisions of s. 297 of the Land Act 1962 which section covers forfeiture proceedings in respect of leases granted under the Land Act. In that regard the function of the Court is

"to decide on the basis of being reasonably satisfied according to the nature of the case (re Spyglass Preferential Pastoral Holding (1966) 33 C.L.L.R. 166) whether the lessee has or has not complied with the conditions specified in the notices given by the Minister and the subject of the references to the Court.  "

On consideration of the evidence in the subject case, I find that liability of the lease to forfeiture for failure to comply with the relevant improvement condition is established.

(D.M. White)     
  Member of the Land Court