Powell v Department of Lands

[1996] QLC 31

[1996] QLC 31

 

LAND COURT BRISBANE

22 MARCH 1996

Re:Miners' Homestead Perpetual Lease 1650 - Georgetown - Liability to Forfeiture -

Lessee: Ralph E. Powell (Hearing at Cairns)

D E C I S I O N

On 14th September, 1994, the Department of Lands referred to the Court "for determination, in accordance with the provisions of section 32(1) of the Miners' Homestead Leases Act 1913, the matter of the proposed forfeiture of Miners' Homestead Perpetual Lease No 1650, Georgetown, for failure of the lessee to comply with the improvement condition applicable to the lease in accordance with section 21(1)(a) of the Miners' Homestead Leases Act".

The matter was then set down for hearing on 29th May, 1995 but adjourned on the application of the Department. It was then set down again on 23rd November, 1995. Ms A. Smout appeared on behalf of the Department but there was no appearance by Mr Powell. The Court was advised by Ms Smout that there had been no contact between the Department and Mr Powell since the adjournment.

Part of the documentation provided to the Court and accepted as an exhibit, was a notice served on the lessee under section 32 of the Miners' Homestead Leases Act, dated 7th April, 1994. That notice stated that the Minister had reason to believe that the lease was liable to be forfeited on the allegation that the improvement condition had not been complied with and it was intended to refer the matter to the Land Court for hearing and determination. As indicated above, that reference was made on 14th September, 1994.

The Miners' Homestead Leases Act was repealed by the Land Act 1994 on 1st January, 1995. Section 519 of that Act refers to "Things done under repealed Acts" and I interpret "done" in subsection

(1) of section 59 as including the Notice issued under section 32 of the repealed Act and the reference to this Court. Then subsection (2) of section 59 provides:

"Everything done under an Act repealed by this Act, is as effective as if it had been done

for the same purpose under this Act."

In the section 32 notice, the Department alleged that the following condition of the lease had not been complied with:

"Improvements to a value of not less than $2,000 have not been affected" (sic) "on the

land in accordance with section 21(1)(a) of the Act."

Ms Smout advised that she had written to the lessee on 26th March, 1992 in connection with an application by the lessee for extension of time within which to complete improvement conditions. The lessee was advised that "before any further extensions are granted, you will have to provide a definite timetable for compliance" .... .  Another letter was written on 27th May, 1993 advising Mr Powell that

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unless the timetable was provided within 30 days of that date, a recommendation would be made for further action to be taken with the Land Court in relation to non-compliance with the improvement conditions.

I am satisfied on the documentation provided and the submissions by Ms Smout that the necessary compliance with the improvement condition has not occurred and that the lessee has been given every opportunity to comply and then to answer the allegation before the Court.

I find that the Minister had acted in accordance with section 32 of the repealed Act and that liability to forfeiture is established.

RE WENCK MEMBER OF THE LAND COURT