Murphy v Minister for Natural Resources

[1999] QLC 61

[1999] QLC 61

 

 

LAND COURT

BRISBANE

3 JUNE 1999

Re:     Application for Forfeiture –

Section 238(1) Land Act 1994 –
  Special Lease:           15/52956 –
  Lessees:  WJ and KM Murphy

(Hearing at Cunnamulla)

D E C I S I O N

Pursuant to s.238(1) of the Land Act 1994 (the Act), the Minister, on 30 December 1998, referred to the Court the matter of deciding whether Special Lease 15/52956 may be forfeited.
           At the time of the reference, the Court was provided with a copy of a notice dated 2 December 1998, addressed to the lessees, advising them of the Minister's intention to refer the matter and the grounds on which the Minister considered the lease may be forfeited.  There has been therefore compliance with the requirements of sub-ss.(2), (3) and (4) of s.238 of the Act.
           The lease is for a term of 20 years which commenced on 1 January 1994, over land described as Lot 11 CP 841119, Parish of Yowah, County of Wellington, containing 1,320 m², situated in the Town of Yowah.
           At the hearing of the matter on 19 May 1999, evidence was given by Mr MP McCosker, registered valuer and Mr MW Coleman, operations manager – Land Services, both employees of the Department of Natural Resources.
           A report dealing with the considered non-compliance with a lease condition was tendered.  The lessees had purchased the lease on 18 October, 1995 and as a requirement of the transfer, had executed Statutory Declarations to the effect that they were aware of, and would comply with, the lease conditions.  An inspection of the lease was carried out by an officer of the Department on 13 June 1997 when it was found that compliance with the Development Condition of the lease had not occurred.  Mr McCosker's evidence was that further inspections, one as late as the day before the hearing, had confirmed that the only improvements on the lease comprised fencing with an assessed value of $800.
           The relevant Development Condition of the lease is as follows:

"D1The 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 1962, effect structural improvements on the leased land in accordance with plans and specifications approved by the Paroo Shire Council of a value of not less than $15,000.00; construction of such improvements shall be commenced within one (1) year 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 1962."

Clearly, compliance with the Development Condition has not been met with no explanation from the lessees, who did not appear at the hearing.

However, the Court was informed that on 3 May 1999 the lessees had sought approval for the transfer of the lease to PJ and K Heywood. 

Mr Coleman, as delegate for the Minister, had responded to that request by letter dated 7 May 1999, advising "that the transfer as proposed will be allowed if in order and lodged promptly" with approval conditions as advised.  Mr Coleman did not seek to have the Minister's reference to the Court withdrawn, but said that he would not wish to act upon the decision if it was found that the lease may be forfeited, until the transferees had been given sufficient time to accept the transfer conditions.
           The decision of this Court is that the lease may be forfeited on the grounds of non-compliance with Condition D1 of the lease. 
           It is recommended however that, in the circumstances, the lease not be forfeited if the proposed transfer conditions contained in the letter to the lessees dated 7 May, 1999 referred to earlier, are promptly accepted by the transferees.

RE WENCK
MEMBER OF THE LAND COURT