Robertson v Admans - [1922] HCA 47

ROBERTSON ADMANS

ON APPEAL FROM THE SUPREME COURT OF Closer Settlement Lands-Agreement for transfer of two allotments to one person-

Validity-Consent of Closer Settlement Board-Contract-Specific performance -Closer Settlement Act 1915 (Vict.) (No. 2629), secs. 75, 84, 86, 129 * Closer MELBOURNE,

Settlement Act 1918 (Vict.) (No. 2987), sec. 39.* Oct. 27, 30.

Held, by Knox C.J. and Powers J. (Starke J. dissenting), that the effect of SYDNEY,

secs. 84 and 129 of the Closer Settlement Act 1915 (Vict.) as amended by the Closer Settlement Act 1918 (Vict.) is that, except in the specified instances, no person shall become or be at any one time beneficially entitled to any estate or interest, legal or equitable, in more than one closer settlement allotment, and therefore that it would be unlawful for the Closer Settlement Board to consent to a transfer to one person of two allotments at the same time or of one allot- ment at a time when he has a beneficial interest in another allotment.

(3) If any person by (Vict.), as amended by the Closer

or under any will or as one of the next Settlement Act 1918 (Vict.), provides by

of kin of any deceased person or by sec. 75 that the Closer Settlement Board

reason of any estate or interest in may dispose of certain lands on condi-

expectancy falling into possession or by tional purchase leases. By sec. 84 it

survivorship or by the foreclosure of provides that (1) Subject to this Act

any mortgage becomes the lessee of any no person shall be granted or hold in his

allotment and thereby becomes a lessee own name or the names of any other

of more than one allotment such person person or persons a lease of more than

shall not be deemed to hold such land (2) If any

contrary to the provisions of this sec- person holds any estate or interest in the

tion until the expiration of three years lease of an allotment contrary to the

from the death of the testator or provisions of this section such estate or

intestate or the falling of such estate or interest shall become forfeited to His

interest into possession or the death of

31 CLR 251

The appellant was the lessee under the Closer Settlement Act 1915 of two H. C. closer settlement allotments, of one in his own right and of the other as executor of his deceased wife. Under the leases a certain sum was still owing to the Closer Settlement Board. The appellant agreed for valuable consideration to transfer his interest in the two allotments to the respondent, subject to the Board agreeing to the transfer, the respondent agreeing to take over the appellant's liability to the Board.

Held, by Knox C.J. and Powers J. (Starke J. dissenting), that under the agreement the respondent was not entitled to insist on a transfer by the appel- lant of either allotment to a third person that it would be illegal for the…

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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Details

Case: [1922] HCA 47
Decision Date: 7 December 1922

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of Victoria regarding an agreement for the transfer of two closer settlement allotments. The appellant, Mr. Robertson, was the lessee of these two allotments under the Closer Settlement Act 1915, holding one in his own right and the other as executor of his deceased wife's estate. The respondent, Mr. Admans, sought specific performance of an agreement to transfer these allotments to him, or alternatively, damages for breach. Mr. Robertson counterclaimed for a declaration that the agreement was void.

The central legal issues before the court were whether the agreement for the transfer of two closer settlement allotments to a single person was lawful under the relevant legislation, and consequently, whether the Closer Settlement Board could lawfully consent to such a transfer. The court was required to interpret sections 75, 84, 86, and 129 of the Closer Settlement Act 1915, as amended by the Closer Settlement Act 1918, to determine the restrictions on the number of allotments a person could beneficially hold.

By a majority decision, Knox C.J. and Powers J. held that sections 84 and 129 of the Closer Settlement Act 1915, as amended, prohibited any person from being beneficially entitled to more than one closer settlement allotment at any one time, except in specific circumstances not applicable here. Their Honours reasoned that it would therefore be unlawful for the Closer Settlement Board to consent to a transfer of two allotments to the same individual simultaneously, or to one allotment if the individual already held a beneficial interest in another. Consequently, the court found that the respondent was not entitled to specific performance of the agreement, nor to damages for its breach, as the agreement itself contemplated an illegal outcome.

The appeal was allowed, and the decision of the Supreme Court of Victoria was reversed. The court declared that the agreement was not capable of being performed in accordance with the law, and therefore the respondent was not entitled to specific performance or damages.

Orders