New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim)

[2009] NSWLEC 46

Reported Decision: (2009) 166 LGERA 137

Land and Environment Court

of New South Wales

CITATION:

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act & Ors (The Kinchela claim) [2009] NSWLEC 46

PARTIES:

31121 of 2008

APPLICANT:
New South Wales Aboriginal Land Council

RESPONDENT:
Minister Administering the Crown Lands Act

41112 of 2008

APPLICANT:
New South Wales Aboriginal Land Council

FIRST RESPONDENT:
Minister Administering the Crown Lands Act

SECOND RESPONDENTS:
Mr Peter Geoffrey Anderson & Ms Anne Elizabeth Adams

FILE NUMBER(S):

31121 of 2008 & 41112 of 2008

CORAM:

Lloyd J

KEY ISSUES:

WORDS AND PHRASES :- "sale" - "sale of land" - "sale of Crown land"

Crown Lands :- validity of a notice to revoke a reservation of Crown land purportedly published in compliance with s 90(2) of the Crown Lands Act - validity of a notice to sell Crown land purportedly published in compliance with s 34(3) of the Crown Lands Act - interpretation of the word "sale" in s 34(6) of the Crown Lands Act 1989 - "sale" in this context held to occur upon the entry into a contract for sale and prior to any transfer of title - contract for sale therefore declared unlawful and void due to prohibition in s 34(6) - Project Blue Sky v Australian Broadcasting Authority - consideration of submission that in light of legislative purpose a specific act prohibited by s 34(6) does not render contract for sale void - consideration of purposes of Crown Lands Act

Construction and Interpretation :- contract for sale of land - held not to be a conditional contract - rejection of submission that completion of the contract was conditional upon valid revocation of the reservation of the subject Crown land

Discretion :- rejection of submission that Court should exercise its discretion and refuse to declare contract for sale void - consideration of innocent third party purchasers - consideration of land council's failure to make a land claim sooner

Aboriginal :- appeal against refusal of land claim - contract for sale between first and second respondents declared void - subject land therefore "vested in Her Majesty" and "able to be lawfully sold or leased" in accordance with definition of "claimable Crown lands" in s 36(1)(a) of the Aboriginal Land Rights Act 1983

LEGISLATION CITED:

Aboriginal Land Rights Act 1983 s 36
Crown Lands Act 1989 ss 3, 6, 11, 34, 56, 90, 102, 104, 172, sch 8
Sale of Goods Act 1923 s 5(1)

CASES CITED:

Amcor Ltd v CFMEU (2005) 222 CLR 241
Attorney-General v Wyndham (1862) 32 LJ Ex 1; 158 ER 1008
Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70
Bond Corporation Pty Ltd v The Western Australian Planning Commission (1999) 108 LGERA 235; [1999] WASC 157
Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998)
Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363
Coco v R (1994) 179 CLR 427
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438
El Cheikh v Hurstville City Council (2002) 121 LGERA 293
Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215
Fletcher v Manton (1940) 64 CLR 37
Garms v Birnzwejg [1990] 2 Qd R 336
Glass v Ralph [1966] WAR 91; (1966) 13 LGRA 90
Joel v Barlow (1903) 22 NZLR 900
Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33; 45 LGRA 105
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Milner v Staffordshire Congregational Union (Incorporated) [1956] Ch 275
Minister for Lands v Bolton (1896) 17 NSWR 389
Minister for Lands v Harrington [1899] AC 408
Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15
New South Wales v Scharer (2003) 131 LGERA 208
New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd [1998] NSWSC 270; (1998) 9 BPR 16,565
Octra Nominees Pty Ltd v Chipper [2007] FCAFC 92; (2007) ANZ ConvR 455
O’Neil v O’Connell (1946) 72 CLR 101
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Perry v Clissold (1906) 4 CLR 374
Potter v Minahan (1908) 7 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3; (1967) 21 LGRA 126
Rosenbaum v Belson [1900] 2 Ch 267
Shaw v Commissioner of Police of the Metropolis [1987] 1 WLR 1332
Tasker v Fullwood [1978] 1 NSWLR 20
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Watson’s Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268

TEXTS CITED:

Butterworths Australia Legal Dictionary (1997)
Concise Oxford Dictionary (8th ed, 1990)
Macquarie Dictionary (3rd revised ed, 2001)
New Shorter Oxford English Dictionary (1993)
Osborn's Concise Law Dictionary (5th ed, (1964) London, Sweet & Maxwell)
Tim D Castle (ed), 'Speeches of a Chief Justice; James Spigelman 1998 – 2008' CS2N Publishing (2008)

DATES OF HEARING:

23-24 February 2009

 
DATE OF JUDGMENT: 

16 April 2009

LEGAL REPRESENTATIVES:

APPLICANT:
J T Gleeson SC and M L Wright (barrister)
SOLICITORS:
Chalk & Fitzgerald

FIRST RESPONDENT:
J K Kirk (barrister)
SOLICITOR:
I V Knight
Crown Solicitor

SECOND RESPONDENTS:
Submitting appearance

JUDGMENT:

- 30 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Thursday, 16 April 2009

LEC Nos. 31121 of 2008 & 41112 of 2008

NEW SOUTH WALES ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT & ORS (The Kinchela claim) [2009] NSWLEC 46

JUDGMENT

1 HIS HONOUR: On 27 September 2008, the Minister for Lands sold at auction land known as lot 256 in deposited plan 1127299, Parish of Kinchela, Country of Macquarie, near Kempsey, and having an area of 8,253 square metres. It was sold to Mr Anderson and Ms Adams as joint tenants for $87,500 and on the same day the contract was signed and the deposit of $8,750 was paid.

2 The land was Crown land and was reserved for a public purpose under the Crown Lands Act 1989, as Reserve 754423 for “future public requirements”.

3 Section 34(1) of the Crown Lands Act enables the Minister to sell Crown land. Section 34(6), however, states:

This section does not authorise the sale of Crown land which is reserved for a public purpose.

4 On 3 October 2008, the Minister revoked the reservation of the subject land by notification in the Gazette, purportedly in accordance with the requirements of s 90 of the Act, which allows the Minister to do so.

5 On 13 October 2008, the New South Wales Aboriginal Land Council made a claim for the land under s 36 of the Aboriginal Land Rights Act 1983. That section enables a claim to be made for “lands vested in Her Majesty - that, when the claim is made for the lands” are “able to be lawfully sold or leased”: sub-s 36(1)(a). The Land Council claims that the contract for sale to Mr Anderson and Ms Adams is unlawful as it was prohibited by s 34(6) of the Crown Lands Act, so that the land could not thus be lawfully sold or leased.

6 On 5 November 2008, the Minister refused the claim on the ground that the land was not claimable Crown land since it was lawfully contracted to be sold when the claim was made.

7 The Land Council has brought two proceedings in this court. In proceedings No. 31121 of 2008, the Land Council appeals under s 36(6) of the Aboriginal Land Rights Act against the refusal of the land claim. In proceedings No. 41112 of 2008, the Land Council seeks a declaration that the contract for sale between the Minister and the second respondents, Mr Anderson and Ms Adams, is unlawful, void and of no effect, and consequential relief including a declaration that the Land Council has a right to have its land claim determined according to law.

8 The Minister has given an undertaking not to complete the contract for sale until determination of the proceedings. Mr Anderson and Ms Adams have entered a submitting appearance. Both actions were heard together and an order was made by consent that the evidence in one be evidence in the other.

9 The proceedings raise six issues: -

(i) Whether the land was the subject of a valid contract for sale and was thus not claimable Crown land.

(ii) The validity of the notices of proposed revocation and of revocation of the reservation under s 90 of the Crown Lands Act .

(iii) Whether the “sale of Crown land” referred to in s 34(6) of the Crown Lands Act occurs at the date of the contract or at the date of settlement.

(iv) The construction of the contract - was it a conditional contract?

(v) Whether the contravention of s 34(6), if any, leads to invalidity of the contract.

(vi) Whether relief should be granted to the Land Council in the exercise of the Court’s discretion.

10 These questions require consideration of the statutory scheme.

The statutory scheme

The Aboriginal Land Rights Act 1983

11 The definition of “claimable Crown lands” in s 36 (1) is relevantly as follows:

claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 ,

(b) are not lawfully used or occupied,

...

12 Under the savings, transitional and other provisions in sch 8 to the Crown Lands Act, the reference to the Crown Lands Consolidation Act 1913 shall be read as a reference to the Crown Lands Act 1989: cl 21.

13 The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils: s 36(2).

14 The claim must be lodged with the Registrar who must then refer it to the Minister: s 36(4). The Minister must, if satisfied that the whole or part of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant the whole or that part of the lands claimed, as the case may be: s 36(5)(a). Alternatively, The Minister must, if satisfied that the whole or part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part of the lands claimed: s 36(5)(b).

15 A Land Council may appeal to the Court against a refusal under s 36(5)(b) of a claim made by it: s 36(6). The Minister bears the onus of satisfying the Court that the lands are not claimable Crown lands: s 36(7).

16 The focus, then, is on the date when the claim is made - in the present case, 13 October 2008. The Minister must satisfy the Court that, at that date, the land was not claimable Crown land as defined above.

The Crown Lands Act 1989

17 Section 3 of the Act provides that “Crown land” means land that is vested in the Crown, but not being:

(a) land dedicated for a public purpose, or
(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

18 Section 6 contains a general prohibition against selling or dealing with Crown land:

Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989.

19 Section 34, however, gives the Minister power to sell Crown land if certain conditions are satisfied:

(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:
(a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or
(b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land,
on behalf of the Crown.
(2) (Repealed)
(3) The Minister may not, under subsection (1):
(a) sell or exchange Crown land,
(b) lease Crown land for a term exceeding 5 years, or
(c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years,
unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
(4) For the purposes of subsection (3) the relevant date:
(a) for a sale or exchange by private treaty is the date on which the Minister enters into a contract to sell or exchange the land,
(b) for a sale by auction is the date of the auction,
(c) for a sale by tender is the closing date for tenders,
(d) for a sale by ballot is the closing date for nominations for the ballot, and
(e) for a lease is the date on which the lease is granted.

(5) If, under subsection (1), Crown land:
(a) is offered for sale by auction and is not sold at the auction,
(b) is offered for sale by tender and no tender is received or accepted, or
(c) is offered for sale by ballot and no nomination of the ballot is received or accepted,
subsection (3) does not apply to a sale of the land by private treaty.
(6) This section does not authorise the sale of Crown land which is reserved for a public purpose.
(7) Crown land the subject of a special purpose lease within the meaning of Division 3A may be leased under this section, but only if the granting of a lease under this section is authorised by, and complies with, the terms of the special purpose lease.

20 In relation to the prohibition against sale in s 34(6), the Minister has the power to revoke a reservation, again, if certain conditions in s 90 are satisfied. That section states:

(1) The Minister may, by notification in the Gazette, revoke the whole or part of a reservation of land under this Act.
(2) The Minister may not publish a notification under subsection (1) unless at least 14 days have elapsed after notice of intention to publish the notification has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.
(3) The revocation takes effect on publication of the notification in the Gazette.

Issue 1: Is the subject land claimable Crown land?

21 As noted in par [15] above, the Minister bears the onus of satisfying the Court that the land was not claimable Crown land: s 36(7) of the Aboriginal Land Rights Act.

22 The Minister submits that the land was not claimable Crown land under s 36(1) because it was not “able to be lawfully sold or leased” or it was not “vested in Her Majesty”, since the land was already the subject of a valid contract for sale. The Minister relies upon the following submissions in support of his primary submission:

(a) There are well-established presumptions of interpretation against statutory interference with vested interests unless the contrary intention is manifest: Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 per Griffith CJ at 373, affirmed on appeal Perry v Clissold (1906) 4 CLR 374.

(b) There is a general presumption that parliament will not overthrow fundamental principles, infringe rights, or depart from the general system of law, without clearly expressing its intention: Potter v Minahan (1908) 7 CLR 277 per O’Connor J at 304 and Coco v R (1994) 179 CLR 427 at 437.

(c) If there are third party rights or interests then the land is not claimable Crown land: Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2001) 54 NSWLR 15, in which Giles JA (Hodgson JA and Rolfe AJA concurring) held at [57] that the evident intention is that third parties are not to be deprived of their interests and rights.

(d) There is no ability on the part of the Crown to transfer an estate in fee simple to the Land Council, as required by s 36(9), if the land is subject to a contract for sale.

(e) Land is not Crown land if it is the subject of a contract for sale and some consideration has been received; and if a contrary view were taken then a claim could be made after a contract of sale had been made which could simply override the rights acquired by the purchaser, giving rise to irreconcilable property disputes which should and could have been dealt with in the legislation.

(f) The better construction of the phrase “ vested in Her Majesty ” is that it does not extend to land which is subject to an equitable interest of a purchaser under a contract for sale, which precludes a simple assertion of ownership by the Crown.

23 The Land Council contends that the Minister lacked the power to sell the land and accordingly could not enter into a valid contract for sale.

24 The resolution of this issue thus depends upon the resolution of the following questions: whether the Minister published a valid notice of intention to revoke the reservation for a public purpose and notice of intention to sell the land as required by s 90(2) and s 34(3) of the Crown Lands Act; whether the contract for sale amounts to a “sale” which infringes the prohibition against the sale of Crown land that is reserved for a public purpose in s 34(6) of the Act; whether the contract is a conditional contract; whether an infringement of s 34(6), if any, leads to invalidity of the contract; and discretionary considerations. In another way, the Minister’s submission relies upon a finding that the contract is not unlawful and is specifically enforceable.

Issue 2: The validity of the notice of proposed revocation and proposed sale

25 On 19 August 2008, a notice was published in the public notices section of The Macleay Argus in the following terms:

PROPOSED REVOCATION OF
RESERVATION AND NOTICE OF
INTENTION TO SELL LAND
In pursuance of the provisions of section 90, Crown Lands Act 1989, the Minister for Lands proposes to consider the revocation of the reservation hereunder described.
Further, if revoked, it is proposed to sell the Crown Land pursuant to section 34(3) of the Crown Lands Act, 1989 on a date not less than 14 days from the publication of this notice.
Description
Parish - Kinchela, County - Macquarie
Locality - Kinchela, Local Government - Kempsey
Reserve Number: Part R 754423 for Future Public Requirements Notified 29th June 2007
Area proposed to be revoked: 8253 square metres
Part proposed to be revoked: within Lot 256
DP 1127299
Reference: TE 80 H 39
[name]
[Position title]
Contact Officer: [name] [telephone number]

26 The notice was published to satisfy the requirements of both s 90(2) and s 34(3) of the Crown Lands Act. Section 90(1) enables the Minister, by notification in the Gazette, to revoke the whole or part of a reservation of Crown lands under the Act. Sub-section (2), however, provides that the Minister may not publish a notification under sub-s (1) unless at least 14 days have elapsed after notice of intention to do so has been published in a newspaper circulating in the locality or circulating generally in the State.

27 Section 34(3) prohibits the sale, exchange or lease of Crown lands unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to do so has been published in a newspaper circulating in the locality or circulating generally in the State.

28 The Land Council contends that the notice is invalid for the following reasons.

(a) The notice does not comply with the terms of s 90(2). It does not clearly indicate that it was intended to publish notice revoking the reserve, rather, it states that the Minister “ proposes to consider the revocation of the reservation ”.

(b) The notice refers to a sale “ pursuant to section 34(3) of the Crown Lands Act ” , which provision does not authorise the sale of Crown land.

(c) The notice is not an adequate notice because it is confusing in its terms as to how the land would be sold and when the sale would take place.

(d) The notice is defective because it suggests that the land would be sold if the reservation is revoked. In fact, the land was dealt with in the opposite order. That is, the contract was made before the process of revocation.

29 In my opinion, the notice is both effective and valid. A public notice required by such statutory provisions as s 34(3) and s 90(2) is invalid if it is misleading: El Cheikh v Hurstville City Council (2002) 121 LGERA 293 per Sheller JA at [2] and per Ipp AJA at [12]. The notice in the present case is, however, neither misleading, nor does it fail to achieve its intended purpose.

30 The purpose of such a public notice is to allow members of the public to make submissions to the Minister about the intended action - in this case the proposal to revoke the reservation and to sell the land. The notice in the present case clearly achieves that purpose. The use of the phrases “proposes to consider” the revocation and “proposed to sell” demonstrate that the Minister did not have a closed mind in relation to the public consultation process. That is, a final decision would only be made after taking into account any submissions received following the period of public notification.

31 The reference in the notice to a proposed sale “pursuant to section 34(3) of the Crown Lands Act” rather than s 34(1), is an immaterial error. No one would be misled as to the proposed course of action. What is important is that the statutory requirement of a public notice of an intention to sell was complied with.

32 Neither do I regard the notice as being confusing as to how and when the land would be sold. The notice required by s 34(3) is not intended to be an advertisement promoting the sale, but rather is notice of the Minister’s intention to sell. There is no requirement for the notice to state when or how the sale is to take place.

33 Finally, the notice cannot be defective because it suggests that the land would be sold if the reservation is revoked. That is not contrary to the Act. It is of no relevance to the validity of the notice that, in the events that happened, the sale occurred before the reservation was revoked.

Issue 3: When was there a sale of Crown land within the meaning of s 34(6)?

34 On 27 September 2008, as I have noted above, the land was sold at auction and on the same day a contract for the sale of land was signed and the deposit paid. The Land Council submits that the sale occurred when a binding contract was entered into, but since it infringed the prohibition against the sale of Crown land which is reserved for a public purpose, it followed that the sale was unlawful and void, the land thus remains “vested in Her Majesty” and is able to be lawfully sold, and hence was claimable at the date of the claim. The Minister submits, however, that the ordinary and natural meaning of “sale” applies, which is a completed sale, which has not yet occurred in the present case, so that there is no infringement of the prohibition against the sale of Crown land which is reserved for a public purpose; and because the land was contracted to be sold as at the date of the claim, it was not otherwise able to be lawfully sold and is thus not claimable.

35 Mr J K Kirk, appearing for the Minister, relies upon the following submissions.

(a) The definitions of “sale” and “sell” in the Macquarie Dictionary (3rd revised ed, 2001) and the Concise Oxford Dictionary (8th ed, 1990) imply that a sale occurs on completion of the process by disposition to the purchaser.

(b) The authorities from other contexts are to the same effect. For example, in Attorney-General v Wyndham (1862) 32 LJ Ex 1; 158 ER 1008, Bramwell B stated that: “ A sale supposes a seller and also, I think, a conveyance ”. In Rosenbaum v Belson [1900] 2 Ch 267 at 269, Buckley J stated in the context of a dispute as to the authority of an estate agent to sell property: “ A sale prima facia means the sale effectual in point of law, including the execution of a contract where the law requires a contract in writing ”: The Minister submits that for a sale to be effectual in law, it must be completed. In Shaw v Commissioner of Police of the Metropolis [1987] 1 WLR 1332, Lloyd LJ, speaking for the Court of Appeal, approved a quotation (at 1337) from Professor Atiyah in the context of sale of goods legislation that it “ may be that the words ‘where goods are sold’ must be given strict significance and do not cover cases of an agreement to sell ”. The Minister submits that the reference to “ strict significance ” illustrates that the notion of sale implies an actual, completed sale.

(c) There are numerous contextual indicators which support the Minister’s submission. Section 34(6) stands in sharp contrast to the broad terms of s 34(1), which include otherwise disposing of or dealing with Crown land. The notion of “ dealing with ” would encompass granting an option to purchase, which would not be a sale. All that s 34(6) prohibits is a sale.

(d) Subsections (3), (4) and (5) of s 34 make the same distinction by expressly referring to the notion of sale as encompassing an agreement to sell. Implicit in this is that but for such a provision the notion of selling would not encompass agreeing to sell, yet the drafter chose not to apply the extended definition to sub-s (6).

(e) A similar distinction is made in the definition of Crown land in s 3, noted in par [17] above, which suggest that “sold” or “sale” does not otherwise include “ lawfully contracted to be sold ”.

(f) Section 102(4) is another example of where the Act makes a distinction between an actual sale and an agreement to sell, in providing that the Minister’s consent to a proposed sale of land held under a reserve trust may be general or may be specific, approving a particular contract of sale.

(g) Section 172(6) refers to situations existing “ at the time of the sale ” which presupposes the sale occurring at one point in time rather than over a period of time.

(h) It is difficult to see how the Land Council’s submission advances any public purpose.

(i) It is difficult to justify the Land Council’s submission when one considers options to purchase, or a right of first-chance to purchase, both of which would be regarded as dealings in land, falling within both s 6 and s 34(1), and which may or may not involve ultimate sale.

(j) The mischief to which s 34(6) is directed is described in the Minister’s second reading speech - that land reserved or dedicated for specific public purposes is not available for alienation whilst the land retains that status. That is only achieved by allowing s 34(6) to apply to actual competed sales.

(k) Section 11 sets out the principles of Crown land management which include: “...(f) that Crown land be occupied, used, sold, leased, licensed or otherwise dealt with in the best interests of the State consistent with the above principles ”. The Minister might reasonably wish to revoke a reservation only when a sale is assured, or may decide that it is in the best interests of the State if the land were sold only if a certain minimum price was achieved.

(l) The expressio unius principle suggests that the word “sale” in s 34(6) does not have the same concept as in sub-ss 34(4) or (5).

36 Despite Mr Kirk’s thorough and carefully formulated submissions, I find that the sale of Crown land referred to in s 34(6) is a reference to a binding contract for sale, which occurs upon the signing of the contract and not at the time of transfer or conveyance of title to the purchaser. I have come to this view for the following reasons.

37 The dictionary definitions of “sale” and “sell” relied upon by the Minister are equivocal and broad enough to include both events. Other dictionaries clearly suggest that a “sale” includes an agreement to sell. The Butterworths Australia Legal Dictionary (1997 edition) defines “sale” as “the transfer, or agreement to transfer property to a buyer for a price”. The New Shorter Oxford English Dictionary (1993 edition) relevantly defines “sale” as “1. the action or an act of giving or agreeing to give something to a person in exchange for money ... 2. … a public auction”. Osborn’s Concise Law Dictionary (5th Edition, (1964) London, Sweet & Maxwell) defines “sale” as “a transfer of a right or property in consideration of a sum of money”. In the context of sale of good legislation, “sale” includes a bargain and sale as well as a sale and delivery: s 5(1) of the Sale of Goods Act 1923.

38 As noted in par [35](b) above, the Minister contends that his submission that the word “sale” means a completed sale is supported by a number of authorities. I find, however, that the cited authorities do not support the Minister’s submission.

39 The Minister relies, firstly, on Attorney-General v Wyndham (1862) 32 LJ Ex 1; 158 ER 1008, in which Bramwell B said: “A sale supposes a seller, and also, I think, a conveyance”. This statement was made, however, in the context of a dispute as to whether death duty was payable to the Crown out of real estate or personal estate. In that context the finding is not surprising.

40 The Minister next relies on Rosenbaum v Belson [1900] 2 Ch 267 at 269, in which Buckley LJ said: “A sale prima facia means the sale effectual in point of law, including the execution of a contract where the law requires a contract in writing”. I have noted the submission that for a sale to be “effectual in point of law” it must be completed. The question in that case, however, was whether an agent had authority to enter into a contract to sell a property. Buckley LJ held on the facts of that case that the agent did have such authority and made an order for specific performance. Buckley LJ went on to find, however, that the word “sell” meant to conclude a binding agreement for sale (at 271).

41 I have also noted in par [35](b) above the Minister’s reliance on Shaw v Commissioner of Police of the Metropolis. This case concerned the question of whether s 21(1) of the Sales of Goods Act 1979 applied to an agreement for the sale of a car, and is of no relevance to the sale of land.

42 Importantly, in this case the sale referred to in s 34(6) is the sale of land. That is the present context in this case. The importance of context was colourfully illustrated by Spigelman CJ in a speech delivered to the Government Lawyers’ Convention in Sydney on 7 August 2001:

Context is always important. Let me give you one example of the flexibility of our language. How should one construe the sentence "The chicken is ready to eat?". This can refer either to a cooked chicken, or to a hungry chicken. Only the context will identify the meaning. I accept that when Lord Simon of Glaisdale spoke of the richness of the English language as a resource for poets, he may not have had this example in mind [see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236 per Simon LJ].

(from ‘Public Law’ in Tim D Castle (ed), Speeches of a Chief Justice; James Spigelman 1998 – 2008 , CS2N Publishing, (2008) 299, 306.)

43 In the context of the sale of land, it is well understood that the word “sale” is ordinarily used to state that land is “sold” when a binding contract is entered into. That is the commonly accepted and ordinary meaning when we speak of the sale of land. This is confirmed by the following authorities.

44 In Fletcher v Manton (1940) 64 CLR 37, Dixon J held (at 49) that when a valid contract of sale of land is made, it is at that point that the equitable right is invoked and “ownership” shall be regarded as passing from the vendor to the purchaser at the date of the contract. Rich ACJ was (unsurprisingly) of a similar opinion (at 42).

45 In O’Neil v O’Connell (1946) 72 CLR 101, Latham CJ said (at 109):

But it is argued that a contract to purchase land is not a purchase of land within the meaning of the Regulations. The contention means that there is no purchase of land unless the contract to purchase is completed by conveyance or transfer. In my opinion this construction should not be adopted. It is an ordinary use of language to say that a man purchases land when he agrees to buy it. This opinion is supported by George v. Greater Adelaide Land Development Co Ltd [(1929) 43 CLR 91], where the Court considered a provision making it unlawful to sell land except in accordance with the provisions of an Act. Knox C.J. drew the distinction between a sale of land and a transfer, conveyance or disposition of the land [(1929) 43 CLR at 98]. See also per Isaacs J [(1929) 43 CLR at 101] and Starke J [(1929) 43 CLR at 104] - "Selling, in the case of land, includes the making of agreements for its conveyance in consideration of a price in money."

(The judgment of Latham CJ was subsequently reversed on other grounds, but the principle quoted above was undisturbed.)

46 In Glass v Ralph [1966] WAR 91; (1966) 13 LGRA 90, D’Arcy J held (at 96) that the word “sale” in the relevant statute extends to an agreement to sell land, that is, the formation of an agreement - the word is not limited so as to mean only to convey or transfer. In that case there was an agreement to sell land which was part of a larger holding, and since the agreement was made prior to the required subdivision approval, it was illegal and thus not enforceable. Moreover, the fact that the contract was expressed to be conditional upon compliance with the statute did not save it from illegality.

47 In Reid Murray Developments (WA) Pty Ltd v Hall [1968] WAR 3; (1967) 21 LGRA 126, Virtue J followed Glass v Ralph in holding (at 7) that the word “sell” in the relevant statute includes an agreement to sell. As in Glass v Ralph, s 20 of the Town Planning and Development Act 1928 (WA) stated that a person shall not sell land except as a lot or lots approved by the Town Planning Board. Again, as in Glass v Ralph, Virtue J held that an agreement to sell is not saved from being an infringement of the Act by reason of the fact that it is expressed as being subject to compliance with the statutory requirements. (This case and the case of Glass v Ralph was subsequently overruled by the Full Court in Landall Construction & Development Co Pty Ltd v Bogaers [1980] WAR 33; 45 LGRA 105, the Full Court holding that an agreement to sell land which is not at the date of the agreement in lots is not an infringement of the Act. In so holding, however, the Full Court did not disturb the finding as to the meaning of the word “sell”.)

48 In Garms v Birnzwejg [1990] 2 Qd R 336, Macrossan CJ held (at 340) that although the words “sell” and “sale” can, in context, be taken as a reference to completing or settling a contract of sale, the more usual meaning which will be attributed is an entry into an agreement for sale of the item concerned.

49 In New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd [1998] NSWSC 270; (1998) 9 BPR 16,565, Young J said (at 16,567):

Prima facie the word “sold” seems to indicate that the parties have entered into a contract for sale which is specifically enforceable; see for instance Blue Mountains City Council v Wincastle Pty Ltd (1961) 8 LGRA 359; 80 WN (NSW) 283.

50 In Bond Corporation Pty Ltd v The Western Australian Planning Commission (1999) 108 LGERA 235; [1999] WASC 157, Miller J referred (at [28]) to a list of cases including Glass v Ralph, Landall Construction & Development Co Pty Ltd and Garms v Birnzwejg and noted that running through them is the general proposition that the meaning of the word “sell” generally means “entry into contract” rather than “settlement of a contract” of sale”, but this may not be the meaning in a particular context.

51 In Octra Nominees Pty Ltd v Chipper [2007] FCAFC 92; (2007) ANZ ConvR 455, Tamberlin, Gyles and Gilmour JJ said (at [50]):

According to common understanding in the context of and in relation to the sale of land, the expression ‘sale of land’ is commonly taken as referring to the making of a binding contract for sale of land.

The Court then referred, by way of illustration, to Milner v Staffordshire Congregational Union (Incorporated) [1956] Ch 275. In that case, Danckwerts J held (at 281-282) that a sale is made when a contract is entered into by the owners of the property in question for the sale of the property to some purchaser. Importantly for the purposes of that case, the contract had not been previously approved by the charity commissioners in accordance with s 29 of the Charitable Trusts Amendment Act 1855 . Danckwerts J held that since the contract to sell was a breach of the section, it was not lawful and thus not enforceable.

52 In New Zealand, in Joel v Barlow (1903) 22 NZLR 900, an action for possession of land, Stout CJ held (at 901-902) that the word “sell”, as ordinarily used, does not mean “convey”:

The word “sell” means only a binding bargain to convey on the part of the vendor, and to take a conveyance and complete on the part of the purchaser ... The word “sell” therefore does not, either in ordinary language or as a term of art, mean a completed transaction by conveyance.

53 The conclusion to be drawn from these authorities is, as noted in par [43] above, that the word “sale” in the context of the sale of land, ordinarily refers to the making of a binding contract of sale. This being the prima facie meaning of the word, it then becomes necessary to consider whether the contextual indicators relied upon by the Minister require a different conclusion. I have summarized in par [35](c)-(l) above the Minister’s submissions, which rely on a number of provisions of the Crown Lands Act which are said to distinguish between a contract for sale and a disposition of or other dealing with land.

54 The difficulty I have with the Minister’s submission is that there is an inconsistency and looseness of expression in the use of language throughout the Act. Moreover, some of the textual indicators relied upon by the Minister are equivocal. Section 34(4) merely clarifies the period for which the notice referred to in sub-s (3) is required, being 14 days before the date of auction or entry into the contract to sell. The reference in s 34(5) to “sold at the auction” clearly suggests that a sale occurs upon entry into a binding contract at the auction rather than upon completion and transfer of title. Section 56, not referred to by the Minister, allows the creation of easements for public access “over Crown land proposed to be sold under this Act - by the Minister at any time before the sale”. The “sale” thus referred to must be understood as entering into a contract for sale, otherwise the Minister could create an easement in the period between an auction and settlement. Section 104, also not referred to by the Minister, uses the term “sold and conveyed”, the concluding words of which would be otiose if “sold” meant “conveyed”, as submitted by the Minister. Finally, the Minister’s reliance on the expressio unius principle - that is, the absence in s 34(6) of the extended definition of sale as in s 34(4) - is, in my opinion, of no assistance to the Minister. There was simply no need to do so when the ordinary meaning of the phrase “the sale of Crown land” is well understood. I find, therefore, that there is nothing in the Act by way of contextual indicators which displace the ordinary and well-understood meaning of the phrase, namely that a “sale of Crown land” occurs when a binding contract for sale is made.

55 I conclude, therefore, that a sale within the meaning of s 34(6) in the present case occurred on 27 September 2008, when the land was sold at the auction and the contract was signed and the deposit was paid.

Issue 4: The construction of the contract

56 The contract describes the vendor in the following terms:

The Honourable Anthony Kelly MLC, Minister for Lands (being the Minister for the time being administering the Crown Lands Act 1989) on behalf of the State of New South Wales pursuant to Section 34 of the said Act.

57 Mr Kirk submits that this indicated that the contract is subservient to the Act; that it was thus made abundantly clear that the land was sold pursuant to and subject to the Act, including in particular s 34; and that there was, therefore, an express recognition that the sale could not be completed unless any reservation on the land was validly revoked before then.

58 In my opinion, however, the contract must be read as a whole, including specific provisions which might suggest a contrary indication. A number of provisions fall into this category. Moreover, there is no specific provision which states that this is a contract which is conditional upon the revocation of the reservation.

59 The first matter which points against Mr Kirk’s construction is on page 2 of the contract under the heading “Warnings”. Under this heading attention is drawn to “various Acts of Parliament and other matters that can affect the rights of the parties to this contract”. None of the matters listed include any reference to the Crown Lands Act or that some further step under that Act is required. Paragraph 4 under the same heading states that if a consent to transfer is required under legislation then that is dealt with by cl 27. Clause 27, however, is struck out, so that the contract is not conditional on a consent being obtained under legislation. Moreover, completion is 42 days from the date of the contract and is not made conditional upon revocation of the public reserve: cll 15 and 16. Clause 29, which applies where “this contract or completion is conditional on an event” is struck through, again an indication that the parties did not intend the contract to be subject to the subsequent revocation of the public reserve.

60 Clause 30.1 supports Mr Kirk’s submission:

30.1 The Purchaser acknowledges that the land comprising the Property is Crown land within the meaning of the Crown Lands Act 1989 (or may be dealt with as Crown land) and the land is sold pursuant to and subject to the provisions of that Act.

61 In Mr Kirk’s submission, this clause indicates that the contract was subservient to the Act - “the land is sold pursuant to and subject to the provisions of that Act”; that there was thus an express recognition that the sale could not be completed unless any reservation on the land was validly revoked before that time; that so construed, the clause manifests a condition subsequent to the formation of the contract but precedent to the obligation to complete; that performance of the Minister’s duty to complete is necessarily subjugated to the Act; and that there should be such a condition is commonplace when any approval or other steps are involved.

62 The difficulty facing the submission is that cl 30.1 is immediately followed by cl 30.2:

30.2 The Minister warrants that all provisions of the Crown Lands Act 1989 that require or specify any matter or thing to be done before the land comprising the Property may be sold have been complied with and the Purchaser agrees that he will not make any requisition, objection or inquiry in respect of the Minister’s authority or capacity to sell the Property or compliance by the Minister with any provisions of the Crown Lands Act 1989 or Regulations made hereunder.

63 Mr Kirk submits that the warranty contained in cl 30.2 relates to the time of conveyance and not the time of entry into the contract. That is, it is a condition precedent to performance, citing Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. I cannot agree. The fact that the purchaser cannot make any relevant requisition, objection or inquiry means that the clause relates to the period upon entry into the contract and up to the time of completion.

64 Moreover, I accept the submission of Mr J T Gleeson SC, appearing with Mr M L Wright for the Land Council, that Perri v Coolangatta Investments is distinguishable because it was not a case concerning an absence of statutory power, but rather a case where the condition was that the purchasers were to sell their other property first. The present case is one where the statute simply says that the Minister has no power to sell and cannot enter into a sale in the first place.

65 Mr Kirk next submits that even if this be so, the only legal effect of the warranty is that the purchaser may have a right to the damages for breach of the warranty; and in the event that the clause is seen as being in tension with cl 30.1, the tension with cl 30.1 should be resolved in favour of upholding the contract and thus in favour of cl 30.1. The submission is developed by reliance also on the principle that regard may be had to the surrounding circumstances known to the parties: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22], Amcor Ltd v CFMEU (2005) 222 CLR 241 at [13] and [30], Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 351-352, and Perri v Coolangatta Investments Pty Ltd.

66 I accept Mr Kirk’s submission that the court should strive to uphold the validity of the contract, and the presumption that a contract should be carried out without breaking the law: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 per Kirby J at 237. Despite Mr Kirk’s careful and thorough submissions, however, I am not persuaded to uphold the validity of the contract. Whilst the surrounding circumstances may be considered, there is no evidence that the purchasers in this case were aware of the fact of the reservation for public purposes. A person reading cl 30.2 would have understood, wrongly, that any matter or thing to be done before the property may be sold had been complied with.

67 I conclude, therefore that the contract is not a conditional contract.

Issue 5: Does the contravention of s 34(6), if any, lead to invalidity of the contract?

68 The conclusion that the contract is not a conditional contract means that there is a contravention of s 34(6) of the Crown Lands Act.

69 Mr Kirk nevertheless submits that the mere fact of a contravention of s 34(6) does not automatically lead to invalidity of the contract, relying upon Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In his submission there is no reason to conclude that parliament would have intended that any conflict with s 34(6) would have that consequence. Mr Kirk submits that: (a) s 90(3) is a mechanical provision and hence a “mere formality”, and no public or statutory purpose is served by invalidating contracts of sale where all that is necessary is a mere formality; (b) it is relevant to take into account the detrimental effect on innocent third party purchasers; (c) the Minister might reasonably decide to revoke a reservation only after a sale is assured, after a contract has been entered, because without a sale it will often be appropriate for the land to remain subject to a reservation; and (d) the Minister may well decide that it is “in the best interests of the State” (s 11) if the land were sold only if, for example, a certain minimum price was achieved, failing which the land should remain reserved for some public purpose.

70 Again, I have come to the view that Mr Kirk’s submission should not be accepted. I have come to this view for the following reasons.

71 In Project Blue Sky, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, approved at [93] the criticism by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, of the continued use of the “elusive distinction between directory or mandatory requirements”. The joint judgment adopted as a test for determining the issue of whether an act done in breach of a statutory power is valid: “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.

72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: “The validity of a particular grant depends upon conformity with the relevant statute”; and at 72 his Honour added, “a purported lease granted without statutory authority is ineffective to dispose of any interest in land”. I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands.

73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]:

Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands " except under and subject to the provisions of " that Act. ... Any purported dealing with Crown land other than in accordance with that prohibition is unlawful ...
Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation.

74 Other authorities are to the same effect. For example in Watson’s Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 268, s 25 of the Crown Lands Consolidation Act 1913 empowered the Minister for Lands to publish in the Gazette a notice of his intention to revoke the dedication of Crown lands and, subject to Parliament not having dissented, to carry his intention into effect after a specified time. Section 63 provided that Crown lands may be sold by public auction at such times and places as the Minister shall direct. In respect of certain Crown land which had been resumed by the Crown and then dedicated as a public park, the Minister gave notice under s 25 of the Act to revoke the dedication and purported to enter into an agreement with the former owner that when the dedication was revoked, the land would be offered for sale by public auction and the purchase money would be accepted by the former owner in full satisfaction of its outstanding claim for compensation. The High Court held that the agreement was illegal and invalid on a number of grounds, but principally because it was an attempt to fetter in advance the discretion and public duty of the Minister - that is, the Minister was bound by the contract to exercise his statutory power as predetermined by the contract, but if unfettered the discretion might lead the Minister to retain the land as Crown land.

75 In Australian Mortgage Land and Finance Co Ltd v Vinecombe (1890) 1 LCC 70, the company had applied to purchase Crown land as a result of improvements made pursuant to s 2 of the Crown Lands Amendment Act 1875. The approval of the application had been published by notice in the Gazette and the purchase money had been lodged with Treasury. Vinecombe subsequently applied to purchase the land. Vinecombe’s application to purchase was opposed by the company, which argued that the land was already lawfully contracted to be sold. The court held, however, that because the company’s improvements were made before the reservation was revoked, there could be no lawful contract for sale in relation to the land. The subsequent Gazette notification could not cure the matter. The government had no power to sell the land or to lawfully contract to do so.

76 Other cases to a similar effect where conformity with the relevant statute has been insisted include, for example, Minister for Lands v Harrington [1899] AC 408 at 413 - 414, Minister for Lands v Bolton (1896) 17 NSWR 389 at 393, Roach v Bickle (1915) 20 CLR 663 at 669-671, Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438 at 443-444 and Bycon Pty Ltd v Moira Shire Council [1998] VSC 25 (unreported, 11 August 1998) at [51], [55], [56] and [58]. In Roach v Bickle, Issacs and Gavan Duffy JJ said at 671: “Where a Statute prohibits a transaction either expressly or by implication, no such transaction can be validly created”.

77 These cases confirm the historical prohibition that the sale of lands reserved from sale has been regarded as a nullity, the cases including those decided both before and after Project Blue Sky. In particular, I can do no other than to follow the Court of Appeal in New South Wales v Scharer, a decision which is binding upon me. It is the publication of the notification in the Gazette under s 90(3) which has legal operation and the sale occurred prior to that happening in breach of s 34(6). The contract for sale is thus unlawful.

78 As to Mr Kirk’s submission noted in par [35](k) above, “the best interests of the State” can be protected by simply negotiating an appropriate sale price or, in the case of a sale at auction, by fixing an appropriate reserve price.

Issue 6: Discretionary considerations

79 The exercise of the court’s discretion is limited to the claim for relief in the proceedings in Class 4 of the court’s jurisdiction. The Minister submits that: (a) third party rights have intervened; (b) the purchasers are innocent parties; and (c) the Land Council could have readily avoided the dispute arising if it had put in its land claim before the auction taking place, following the public notification of intended sale.

80 The granting of the relief sought does not, however, leave the purchasers without any remedy at all. Although unable to complete the contract, they would appear to be able to recover their loss as a consequence of a total failure of consideration. I also accept the submission of the Land Council that it could not have lodged its claim until after the Minister had revoked the reservation, because it was unlikely that the land could have been said to be “able to be lawfully sold” and thus claimable. Moreover, land claims over land which is reserved for future public requirements commonly fail because they fall foul of s 36(1)(c) - the land being needed, or likely to be needed, for an essential public purpose. The chance of a land claim succeeding would be greater when a reservation is revoked, remembering that the determination of whether the land is claimable is the date upon which the claim is made. There is nothing in the nature of disentitling conduct on the part of the Land Council in making its claim at a time when it is more likely to succeed - that is, as soon as it knows that the reservation for the public purpose had been revoked. Finally, I accept the Land Council’s submission that it would be otherwise irresponsible for it to simply fire off land claims over every piece of Crown land reserved for a public purpose. I conclude, therefore, that there are no discretionary considerations which should deny the Land Council the relief that it seeks.

81 Relief in the proceedings brought in Class 3 of the court’s jurisdiction is not discretionary. The land claim must be determined at the date when the claim is made. If the Minister is satisfied that the land in question is claimable Crown land as defined in s 36(1) of the Aboriginal Land Rights Act, then the Minister “shall” grant the claim: s 36(5)(a). On appeal against a refusal to grant a claim, the onus remains on the Minister to satisfy the court that the land in question is not claimable: s 36(7). No question of discretion arises, a point which is conceded in the Minister’s written submissions.

Conclusion

82 I have found that the notice of proposed revocation and proposed sale is valid; the sale occurred on the day of the auction - 27 September 2008 - when the contract was signed and the deposit was paid; and the contract was not a conditional contract. There was accordingly a contravention of s 34(6) of the Crown Lands Act and, as a consequence, the Minister lacked the power to sell the land and the contract is unlawful and void. It follows that the land was, when the claim was made, claimable Crown land within the meaning of s 36(1) of the Aboriginal Land Rights Act.

83 I acknowledge the assistance of Acting Commissioner M Davis who heard this case with me.

Orders

84 I make the following orders:

LEC No. 41112 of 2008

1. A declaration that the applicant has a right to have Aboriginal land claim 16612 determined according to law.

2. A declaration that the contract for sale of land between the first and second respondents dated on or about 27 September 2008 in relation to lot 256 in deposited plan 1127299, being the land the subject of Aboriginal claim 16612, is unlawful and is void and of no effect.

3. An order that the first and second respondents be restrained from completing the contract for sale of land dated on or about 27 September 2008 in relation to lot 256 in deposited plan 1127299, being the land the subject of Aboriginal claim 16612, or otherwise dealing with that land (except in accordance with section 36 of the Aboriginal Land Rights Act 1983).

4. An order that the first respondent pay the applicant’s costs.

5. The exhibits may be returned.

LEC No. 31121 of 2008

1. The appeal is upheld.

2. The respondent transfer the land claimed under Aboriginal land claim 16612 (known as lot 256 in deposited plan 1127299) in fee simple to the New South Wales Aboriginal Land Council.

3. The respondent do all things necessary to effect the transfer of the land in accordance with Order 2 above including surveying the land, as soon as reasonably practicable.

4. The exhibits may be returned.

I hereby certify that the preceding 84 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 16 April 2009