1889 (N.S. W.) (53 Vict. No. 21), sec. 33-Crown Lands Act 1895 (N.S. W.) (58 Vict. No. 18), sec. 49-Occupation licence-Relationship between Crown and licenser-Agreement by Crown not to disturb licensee-Implication of covenant for quiet enjoyment- - Powers of Minister with respect to Crown lands E-stoppel- - Res judicata.

An occupation licence under the Crown Lands Acts is an annual tenure of land, in respect of which the licensee pays fees subject to re-appraisement, and which is renewable under certain conditions from year to year. The holder of such a licence agreed with the Government that there should be a re-appraise- ment of the licence fees, but before the re-appraisement the Government demanded payment at the original rates. The licensee failed to pay the amounts claimed, and the Government published a notification in the Govern- ment Gazette that the licence had not been renewed. The result of the noti- fication, if valid, was that the lands in question became Crown lands available for occupation under annual lease.

In an action by the licensee against the Government for damages for breach of contract the declaration alleged that the licensee then agreed with the Government that, in consideration of his paying the fees demanded, the noti- fication should be withdrawn and he should be permitted, subject to the provisions of the Crown Lands Acts, to quietly enjoy the area so long as the licence should be renewed, free from interference, disturbance, or eviction by the Government or persons claiming under it by matter subsequent to the payment of the fees in question. The fees were paid by the licensee, but the notification was not revoked, and an annual lease was granted to another person of portion of the area.

5 CLR 218

By the decision of the Privy Council in O'Keefe v. Malone, (1903) A.C., 365, the Crown was not entitled to the fees demanded in respect of the lands in question, and the licensee was, therefore, entitled to remain in possession

Held, on demurrer to the declaration, that it disclosed a good cause of action. The agreement, regarded as an agreement by the Crown for valuable consideration not to do any act in violation of the rights of the licensee, was a valid exercise of the power of the Executive to make contracts with respect to the lands of the Crown within the limits imposed by Statute; and, if the rights of the parties had been doubtful, the contract would have been good as a compromise of a bona fide dispute. Even if the Crown had been entitled to the fees demanded, and the licence had therefore become liable to forfeiture for breach of the condition of payment of fees, the agreement on the part of the Crown would have been justifiable as an exercise…

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.

Continue reading O'Keefe v Williams

Details

AGLC: O'Keefe v Williams [1907] HCA 64
Case: [1907] HCA 64
Decision Date: 9 December 1907

CaseChat Overview and Summary

The appellants, executors of Andrew O'Keefe, appealed to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute concerned an alleged breach of contract by the Government, which had granted an occupation licence to the appellants' testator. The Government had demanded payment of licence fees that, following a Privy Council decision in a related matter, were not legally payable. Despite this, the testator paid the demanded fees in consideration of an agreement that he would be permitted to quietly enjoy the licensed area, free from interference or eviction by the Government or persons claiming under it. However, the Government subsequently granted annual leases of portions of the area to other persons, causing the testator expense. The Government's defence included a plea of estoppel based on a prior decision of the Land Court.

The legal issues before the High Court were whether the declaration disclosed a good cause of action for breach of contract, and whether the plea of estoppel was valid. Specifically, the court had to determine if the alleged agreement by the Crown not to disturb the licensee was a valid exercise of executive power, and if an implied covenant for quiet enjoyment arose from the occupation licence. The court also considered whether the Land Court's decision on the availability of the land for annual lease created an estoppel against the licensee.

The High Court held that the declaration disclosed a good cause of action. The court reasoned that the agreement, viewed as a contract for valuable consideration not to violate the licensee's rights, was a valid exercise of the Executive's power to contract regarding Crown lands, within statutory limits. Even if the Crown had been entitled to the fees, the agreement could be justified as an exercise of the Minister's power to waive forfeiture under the Crown Lands Act. The court also found that the plea of estoppel was invalid, as the Crown was not a party to proceedings before the Land Board, and therefore, there was no mutuality required for estoppel. The court questioned whether an implied covenant for quiet enjoyment existed in an occupation licence tenure.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales, finding in favour of the appellants and holding that the declaration disclosed a good cause of action.

Orders