Ripley Downs Pastoral Company Pty Ltd v Minister for Lands

[1995] QLC 82

[1995] QLC 82

 

  LAND COURT

BRISBANE

30 AUGUST 1995

Re:  In the matter of liability of a lease to forfeiture -
           Special Lease No.: 13/46646, Cloncurry District.
           Lessee:        Ripley Downs Pastoral Company Pty Ltd

(Hearing at Cloncurry)

D E C I S I O N

The Minister for Land Management served notice, under the provisions of section 297(1) of the Land Act 1962, on Mr J. Gleeson, Ripley Downs Pastoral Company Pty Ltd, on 5th May, 1995, of his intention to refer the matter of liability to forfeiture of the above lease to the Land Court.
           The lease was for a term of 30 years, commencing on the First day of October 1984, over an area of about 90.9 hectares being Lot 134 on Plan Bd.217, County of Beaconsfield, Parish of Cloncurry.  The lease was for "Manufacturing (Pet Food Works) and Residential Purposes". 
           The Notice of Intention alleged that the following conditions of the Special Lease had not been complied with:

1.The lessee shall use the leased land for pet food manufacturing works and for residential purposes and for purposes incidental thereto only.

2.The lessee shall, within three (3) years from the commencement of the term of the lease and to the satisfaction of the Minister, construct a pet food works and associated buildings on the leased land of a value of not less than $300,000; such construction to commence within one (1) year from the commencement of the term of the lease and thereafter to proceed at a rate satisfactory to the Minister.

Under the relevant legislation, the Minister may refer the matter to the Court for hearing and determination.  The Minister is required to give the lessee 28 days' notice of his intention to make the reference, stating in the notice the conditions which have not been complied with.  A copy of the notice is required to be submitted to the Court with the reference.
           The reference to the Court was made on 15th June, 1995, with the request that the matter be set down for hearing at a published sittings of the Land Court in Cloncurry on 24th July, 1995.  The matter was duly set down for hearing at 12 noon on that day, the notice of the case coming on for hearing having been given to the lessee on 19th June, 1995.
           By facsimile transmitted at 11.35 a.m., 24th July, 1995, the solicitors acting on behalf of the lessee, sought an adjournment "of sufficient length to enable us to obtain proper instructions, and to respond to the matters raised by the Department".  The Court was advised that the solicitors had been unable to obtain instructions prior to the listed time - the lessee's principal, Mr Gleeson, being out of the country on business.
           When the matter was called on for hearing the application for adjournment was opposed by counsel for the Department of Lands.  The reference to the Court had included information relative to the history of the alleged non-compliance with the conditions of the lease.  The matter had been previously referred to the Court but withdrawn at a hearing on 26th July, 1994, on an application from the Department of Lands.  The basis of that withdrawal was stated as being "on the evidence produced that the lessee would continue to negotiate" on the further dealing with the land. 
           The information provided to the Court was that subsequent to the matter being struck from the list of cases awaiting hearing, on 26th July, 1994, the lessee advised the Department on 9th August, 1994, that proposals were being "worked on" but there had been no further satisfactory response to communications by the Department.
           It seems that Mr Gleeson, the principal of the lessee company, spends much of his time overseas on business, but makes no genuine effort to respond to the Departmental requests.
           The purpose of the hearing was to establish whether liability to forfeiture exists.  The function of the Court is to be reasonably satisfied, according to the nature of the case (Re:  Spyglass Preferential Holding (1966) 33 CLLR 166).  I was satisfied on the information before me, that the Court would be in a position to carry out its function, if the case proceeded.  The application for adjournment was dismissed.
           Mr Mark Francis Cranitch, District Manager, Department of Lands, Cloncurry, was called to give evidence.  He had been stationed in Cloncurry for three years and had dealt with the subject matter for about 2½ years.  He said that he had inspected the lease on a number of occasions during that time, the most recent inspection having been made about two weeks prior to the hearing.
           I was left in no doubt, on Mr Cranitch's evidence that the improvement condition had not been complied with and the land is not used for pet food manufacturing works and for residential services.
           I determine that liability to forfeiture of Special Lease 13/46646 is established by reason of the failure of the lessee to comply with the conditions of the lease, the subject of the reference to the Court.

MEMBER OF THE LAND COURT