RESPONDENT. DEFENDANT, Crown Lands Art of 1884 (N.S. W.) (48 Viet. No. 18), sec. 81 Crown Lands Act
of 1895 (N.S. W.) (58 Vict. No. 18), sec. 4-Occupation licence - Rights of holder -Grant by Crown of annual lease of lands held under occupation licence- Eviction of licensee by annual lessee-Liability of Crown for breach of covenant of quiet enjoyment-Derogation from grant-Relationship between Crown and holder of Crown lands - Landlord and tenant-Disturbance - of possession of lessee by assignee of lexor-Damages-Cost of legal proceedings-Recovery of rent paid to lessor by assignee-Practice-Amendment of pleadings at the trial.
In 1899 the plaintiffs' testator, Andrew O'Keefe, was entitled to the exclusive occupation of certain Crown lands as the holder of occupation licences, which operate as a demise for a year renewable at the option of the licensee, the licence fees being payable in advance. O'Keefe did not pay the licence fees for 1900 at the time appointed by a gazette notice, and on 6th January 1900 it was notified that his occupation licences had not been renewed for that year. This notification-as it was subsequently held-was inoperative, as the licence fees demanded were not then legally due. On 12th January, however, O'Keefe interviewed an officer of the Lands Department as to the non-renewal of his licences, and paid the licence fees demanded into the Treasury, the money being placed to a suspense account, pending the decision of the Minister. On 20th January the Minister approved a minute reversing the non-renewal of the licences for 1900, "subject to any conflicting interests that may have arisen since 31st December last, and to any annual lease applications lodged since that date." This reversal was gazetted on 14th February. In the interval between 20th January and 14th February one Malone applied for an annual lease of
portion of O'Keefe's holding. This application was opposed by O'Keefe, but was granted by minute of the Executive Council dated 19th November 1900, and Malone entered under this lease and dispossessed O'Keefe, 'Keefe sub- sequently obtained a verdict in an action of trespass against Malone, it being held by the Privy Council in 1903 that when the annual lease was granted O'Keefe was entitled to the exclusive occupation of the whole of the land. O'Keefe paid the licence fees for the whole area for 1901, and in November 1901 he tendered the fees in full for 1902, but the Crown refused to accept them except for the area not included in the portion leased to Malone. O'Keefe having died, the plaintiffs, his executors, brought this action against the Crown, alleging a breach by the Crown of an agreement with Keefe that, in consideration of his paying the licence fees demanded, the notification of the non-renewal of his occupation licences should be revoked, and that he should be permitted quietly to enjoy the lands free from interference on the part…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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O'Keefe v Williams [1910] HCA 40
Case
[1910] HCA 40
Decision Date
CaseChat Overview and Summary
The case of *O'Keefe v Williams* involved a dispute between the executors of Andrew O'Keefe and the Crown concerning O'Keefe's rights to certain Crown lands held under occupation licences. O'Keefe had initially failed to pay his licence fees for 1900 by the due date, leading to a notification that his licences had not been renewed. However, he subsequently paid the demanded fees, and the Minister approved a reversal of the non-renewal, subject to any conflicting interests. Despite this, an annual lease was granted to a third party, Malone, who then dispossessed O'Keefe. O'Keefe later succeeded in an action against Malone, establishing his superior right to occupy the land. The executors brought this action against the Crown, alleging breaches of contract.
The legal issues before the court were whether the Crown had breached an express agreement with O'Keefe regarding the quiet enjoyment of his licensed lands, and whether the trial judge erred in refusing to allow an amendment to the pleadings to include a claim for breach of an implied agreement not to derogate from the grant of the licences. The court also considered the Crown's liability for rent received from Malone for the disputed land and the recoverability of damages and costs incurred by O'Keefe in his action against Malone.
The High Court, by majority, held that while there was no evidence of a breach of the express agreement alleged in the first count, the amendment to include a claim for breach of an implied agreement not to derogate from the grant should have been allowed. The majority reasoned that a contractual obligation is implied in a demise by the Crown under the Crown Lands Acts that the Crown will not disturb, or authorise the disturbance of, the licensee's occupation, and will not act in derogation of the rights conferred by the statutory grant. This implied obligation meant the Crown was liable for granting the annual lease to Malone, which interfered with O'Keefe's exclusive occupation.
The Court ordered that the appeal be allowed, the judgment of the Supreme Court be reversed, and the case be remitted to the Supreme Court to allow the amendment and to assess damages. These damages were to include expenditure incurred by O'Keefe due to the loss of the portion of land granted to Malone, and so much of the damages and costs from the trespass action against Malone as the plaintiffs were unable to recover from Malone. The Court also indicated that the Crown might not be entitled to retain rent received from Malone for the period O'Keefe was legally in possession.