Minister for Lands (NSW) v The King

The Minister for Lands (NSW) sought special leave to appeal to the High Court from a decision of the Supreme Court of New South Wales. The dispute concerned the validity of a proposed transfer of a conditional purchase and conditional lease. The original holder of a settlement lease, King, had entered into an agreement to sell the lease to Lillicrap before obtaining the Minister's consent. Subsequently, King, at Lillicrap's request, converted the settlement lease into a conditional purchase and conditional lease. Lillicrap then sold these to Robertson. King, as the registered holder, applied for the Minister's consent to transfer the land to Robertson, intending to give effect to Lillicrap's sale. The Supreme Court had held that this proposed transfer was not in contravention of section 272 of the Crown Lands Consolidation Act 1913 and that the Land Board could recommend consent.

The central legal issue before the High Court was whether the initial agreement for sale of the settlement lease between King and Lillicrap, which was not consented to by the Minister, rendered the subsequent proposed transfer of the converted conditional purchase and conditional lease from King to Robertson invalid or illegal under section 272 of the Crown Lands Consolidation Act 1913. Section 272 (2) stipulated that any transfer of such holdings required the Minister's consent and would not be valid if effected without it.

The High Court, in refusing special leave to appeal, indicated its view that section 272 (2) did not render a transaction, such as the initial sale agreement, illegal in a way that would be punishable or vitiate other transactions. Instead, the provision was interpreted as rendering such a transaction inoperative until the Minister's consent was obtained. Consequently, the Court considered that no objection could be taken on the grounds of illegality to the proposed transfer from King to Robertson, as it was otherwise admitted to be proper. The Minister's application for special leave to appeal was therefore refused.