Minister for Natural Resource and Mines v Rodrigues

[2002] QLC 55

LAND COURT OF QUEENSLAND

CITATION:	Minister for Natural Resource and Mines v. Rodrigues [2002] QLC 55
PARTIES:	Minister for Natural Resources and Minister for Mines
(applicant)

v

Nir Rodrigues

(respondent)

FILE NO/S:	LA2002/0028
DIVISION:	Land Court of Queensland
PROCEEDING:	Application for forfeiture
DELIVERED ON:	16 July 2002
DELIVERED AT:	Brisbane
HEARD AT:	Toowoomba and Brisbane
MEMBER:	Mrs CAC MacDonald
ORDER:	1.  The decision of the Court is that the lease may be forfeited on the ground of breach of Condition D175.
CATCHWORDS:	Land Act 1994 – Forfeiture (ss. 236, 238) – for breach of condition of lease – failure to effect structural improvements – finding that lease may be forfeited.
Practice and Procedure – Service of application – means of effecting such – Land Court Rules 2000 – Rules a statutory instrument – adoption of Acts Interpretation Act provisions to complement such Rules rather than Uniform Civil Procedure Rules.
Statutory Interpretation – Service of application – means of effecting such – Land Court Rules 2000 – Rules a statutory instrument – adoption of Acts Interpretation Act provisions to complement such Rules rather than Uniform Civil Procedure Rules.
APPEARANCES:	Mr R Paterson, Principal Legal Officer, Department of Natural Resources and Mines, for the applicant

[1] This is an application to the Court pursuant to section 238 of the Land Act 1994 (the Act) for a determination as to whether a lease may be forfeited. The lease in question is Term Lease 210762 which was granted for a period of 20 years commencing on 17 July 1998 over land described as Lot 1 on SP 104614, Parish of Yowah, County of Wellington, containing an area of 1,267 m² and situated at Boobialla Street, Yowah.

[2] Section 238 of the Act provides that:

“238.(1) Before a lease is forfeited other than for non-payment of an amount payable to the State under this Act for the lease, the Minister must refer the matter to the Court to decide whether the lease may be forfeited.

(2) The minister must give the lessee and any mortgagee at least 28 days notice of the Minister’s intention to refer the matter to the Court.

(3) The notice must state the grounds on which the Minister considers the lease may be forfeited.

(4) A copy of the notice must be filed in the Court at the same time as the Minister refers the matter to Court.”

[3] The matter was referred to the Court on 15 March 2002 by the Minister for Natural Resources and Minister for Mines. At the time of the reference, the Court was provided with a copy of a notice dated 26 November 2001, addressed to the lessee, advising him of the Minister’s intention to refer the matter to the Court and the grounds on which the Minister considered the lease may be forfeited. This notice was sufficiently served in accordance with s. 39(1)(a)(ii) of the Acts Interpretation Act 1954 and as a consequence, there has been compliance with the requirements of subs. (2), (3) and (4) of s. 238 of the Act.

[4]              Section 234 of the Act provides that:

“A lease may be forfeited –

(a) if the lessee defaults in the payment of an amount payable to the

State under this Act for the lease; or

(b) if the lessee breaches a condition of the lease; or

(c) if the lessee contravenes a provision of this Act in relation to the

lease; or

(d) if the lessee acquired the lease by fraud.”

[5]              The ground on which the application is made is failure by the lessee to comply with condition D175 of the lease. Condition D175 provides:

“The lessee shall within two (2) years from the commencement of the term of the lease and to the satisfaction of the Minister administering the Land Act 1994 effect structural improvements in the nature of a dwelling on the leased land in accordance with plans and specifications approved by the Paroo Shire Council of a value of not less than $20,000; construction of such improvements shall be commenced within twelve (12) months from the commencement of the term of the lease and shall thereafter proceed at a rate of progress satisfactory to the Minister administering the Land Act 1994.”

[6]              There was no appearance by the respondent at the hearing of the matter. Mr GL Morris, a registered valuer employed by the Department of Natural Resources and Mines, appeared on behalf of the applicant. He also gave evidence on behalf of the applicant and tendered a report in support of the application. Mr Morris said that he inspected the property, the subject of the lease, on 18 February 2002 and found that no improvements had been made to the property as at that date.

[7]              On a resumed hearing of the matter, I heard submissions as to the sufficiency of service of the originating application from Mr R Paterson of Counsel for the applicant. A copy of the originating application was posted by the applicant to the respondent at his last known place of residence, and was not returned unclaimed. No communication has been received from the respondent. Rule 11 of the Land Court Rules 2000 (the Rules) provides that “Unless the court otherwise orders, the applicant must serve a copy of the originating application on each other party”. The rule does not state in what manner service is to be effected. Mr Paterson submitted that it was appropriate to interpret r. 11 by applying s. 39(1)(a)(ii) of the Acts Interpretation Act 1954 which provides that if an Act requires a document to be served on a person, the document may be served by, inter alia, sending it by post to the address of the place of residence or business of the person last known to the person serving the document. The Land Court Rules are a statutory instrument (see ss. 7 and 8 of the Statutory Instruments Act 1992) and therefore the Acts Interpretation Act may be used to interpret the Rules (see s. 7 of the Acts Interpretation Act; s. 14 and Schedule 1 of the Statutory Instruments Act). Mr Paterson submitted that it was not appropriate to turn to r. 4(1) of the Rules, (which provides that if the Land Court rules do not provide for a matter, the Uniform Civil Procedure Rules 1999 apply with necessary changes), because r. 11 as interpreted by s. 39 of the Acts Interpretation Act does deal with the question of service. I have accepted these submissions and, therefore, have concluded that the originating application was sufficiently served.

[8]              Condition D175 requires that the lessee effect structural improvements in the nature of a dwelling on the leased land to a value of not less than $20,000, within two years of the commencement of the lease, that is by 17 July 2000. The evidence is that no improvements had been made as at the date of last inspection of the property, namely 18 February 2002. I am satisfied that the lessee has breached Condition D175 of the lease and, that, therefore, by virtue of s. 234(b) of the Act, the lease may be forfeited. The decision of the Court is that the lease may be forfeited on the ground of breach of Condition D175.

CAC MacDONALD
MEMBER OF THE LAND COURT