GENERAL v. BULL. 1912. alienation is a mere nullity. Sect. 26 (vi) of the Act of 1895 does not refer to improvement leases. Sects. 35 and 37 of the ATTORNEY1889 Act only refer to scrub and inferior land leases. Sect. 27 of the 1895 Act shows they are treated as distinct leases. No power after the grant of an improvement lease to extend its term. If extension be made in form of a fresh lease, the extension must follow, in regard to conditions precedent, the provisions of s. 26. It is either (1) an extension; or (2) a fresh lease. But in either case the preliminary provisions of the section must be complied with. The recommendation of local board is as necessary as a consent is to a trustee who has power of sale with the consent of the life tenant. The leases are a mere nullity: Re Murray (15 L.C.C. 14); The Queen v. Clarke (7 Moo. P.C.C. 77); The Queen v. Hughes (L.R. 1 P.C. 81); Farwell on Powers, 2nd ed. 357; Bowes v. East London Waterworks Company (Jac. 324); Robson v. Flight (4 De G. J. & S. 608). If Court should decide the transaction voidable, then the question is on what terms must the Crown get back the land. If I lead a person to suppose I have granted something to him, the principle on which I am decreed to compensate him is estoppel: Ramsden v. Dyson (L.R. 1 H.L. 129). But estoppel does not apply to the Crown: Everest and Strode on the Law of Estoppel, 2nd ed. pp. 7, 8. Campbell, K.C. and Pike, for defendants. The extensions are valid, being within competency of authorities, and tenures are within Act. If letter of June, 1906, is not ambiguous, what is conveyed is that lease is voidable; then the delay of five years showed the Crown did not insist on its right to avoid. If ambiguous, the Crown must abide by the impression made upon mind of Bull: Falck v. Williams (21 N.S.W.L.R. 78, 82). As to Act: where provisions for extension appear in Act, they are provisions expanding terms, not machinery for creating extensions. The extensions referred to by Mr. Owen do not grant a faculty or power, but merely enlarge a power. Duration of scrub lease by s. 35 of the 1889 Act is 21 years, s. 26 (vi) of the 1895 Act extends this to 28 years. Duration of inferior land leases by s. 37 of the 1889 Act is 20 years, s. 26 (vi) of the 1895 Act extends period to 28 years. Duration of settlement leases by s. 25 of the 1895 Act is 28 years, extended by s. 5 of the 1903 Act to 40 years. Duration of conditional leases by s. 35 of the 1889 GENERAL บ. BUI.L. 1912. Act is 28 years, extended to 40 years by s. 6 of the 1903 Act. ATTORNEY- Residential leases: s. 21 of 1903 Act. Special leases: s. 46 of 1895 Act; ss. 89, 90 of 1884 Act. Sect. 92 of the 1884 Act: no term of lease prescribed-once power exercised no power to add to it. Sect. 26 refers only to Crown lands, i.e., lands not under lease: Osborne v. Morgan (13 A.C. 227); Jaques v. Stafford (11 N.S.W. 127)-these lands were therefore unaffected by the provisions of the section. Improvement leases in question and extension not against provisions of Act, O'Keefe v. Williams (5 C.L.R. 217). [HIS HONOUR: The Crown say the extension was invalid as the recommendation of the Land Board was not obtained.] That is irrelevant as s. 26 does not apply. [HIS HONOUR: What power is there except under s. 26?] The lands were not Crown lands when the new lease was granted, and s. 26 has no application. The recommendation has reference to the original lease only. A power to extend was assumed to exist in regard to improvement leases up to 28 years. There could have been a covenant for renewal in the lease. Extension clearly within O'Keefe v. Williams (5 C.L.R. 217, 221, 226). If no provision of the Act is contravened it is a proper exercise of executive authority. Goodtitle v. Funucan (2 Doug. 565, 567); In re Robert Barbour (14 N.S.W.L.R. 236). This is a voidable lease: Osborne v. Morgan (13 A.C. 227 234). [HIS HONOUR: All that case decided was that third parties could not take advantage of the flaw.] The suit is improperly brought: proper procedure is under s. 44 of the Act of 1895; where there is an omission of an essential formality it is enacted that the holding shall be voidable. In re Robert Barbour (supra): Assuming that there is no power in the Court to refuse to assist the Crown as it would a subject, the extension of the lease-there being possession under it and payment-is in the same position as the lease in Osborne v. Morgan (supra). We do not rely on estoppel, but say that we made a contract with the Crown, and incurred expenditure on the faith of Crown's ability to carry out the contract, if the Crown cancels that contract we are entitled to compensation for all expenditure incurred on the faith of the validity of the lease. If Crown wants to rescind contract it can only do so by indemnifying the purchaser to the extent to which the lessee could get damages for breach if he sued for them: Osborne v. Morgan (supra); Halsbury's Laws of England, vol. 10, p. 302 under "Damages." Does not apply to contract for sale of lands (ib. p. 337). Rule as to granting lease different; Robinson v. Harmon (1 Ex. 850, 855); Hopkins v. Grazebrook (6 B. & C. 31); Mayne on Damages, 7th ed. 214. Here, you have a contract to grant a lease by a person as to whose title there is no doubt, who has committed an informality which he can correct; such a one is liable to the common law rule as to damages. Bain v. Fothergill (L.R. 7 H.L. 158). (2) Under s. 44 of the 1895 Act it is not competent to treat this as anything but voidable. The Act contemplated that all leases falling under that section should be dealt with under it. The permissive form of expression "may" is necessary on account of the two courses mentioned. As complete machinery is provided by s. 44 the Crown cannot come into Court by information. Julius v. Bishop of Oxford (S.A.C. 214) shows that where there is a power and a duty created, there is an exclusive mode of procedure indicated. [HIS HONOUR: You say that by the use of the word "may" the Legislature has taken away the jurisdiction of the Court?] Yes; coupled with the operation of the section. [HIS HONOUR: What is my course if I give effect to this contention?] To stay the proceedings altogether so that the Crown may act under the section. The Court should say this remedy is barred by the statute. Owen, in reply. Jaques v. Stafford (supra) only decides that you cannot have two co-existing leases, one in A and the other in B.; O'Keefe v. Williams (supra); s. 81 of the 1884 Act. If the lease is void, then no compensation can be decreed; if it is declared to be voidable, then the basis of compensation has to be ordered. No case shows that where an authority has acted beyond his powers compensation can be decreed against him, e.g., a corporation purports to deal with its property in an unauthorised manner, and a person acts on that 1912. ATTORNEY- ย. BULL. 1912. and incurs damage-there is no authority to show that the ATTORNEY Corporation can get relief only on terms. GENERAL ย. BULL. [HIS HONOUR: If the Crown chooses to come to Equity instead of to Common Law, must it not do equity?] The section was never intended to deal with a case where there has been an attempted alienation of land which is not allowed. Sect. 26 of the 1895 Act prevented the Minister alienating Crown lands unless he obtained the consent of the Land Board. Carr v. De Britt (11 S.R. 101; 13 C.L.R. 114, 127). Sect. 44 does not apply to a case where the Minister has done something which the law does not allow him to do— has granted something of his own motion without taking the necessary precedent steps. The section has reference to breach of ordinary observances of the Act. The want of recommendation is absolutely fatal. As to whether the directions are imperative on the Minister, the words of the section must be considered. The section draws a distinction between what is compulsory and what is discretionary-the Minister "may"-the Board "shall." Two views of section: (1) option of sustaining or not sustaining arises after reference to Land Board; (2) where it appears to be voidable, Minister may refer to Land Board, and if Board finds it voidable, Crown must avoid, but Minister may sustain. In re Baker (44 ch. D. 262): Lopez, L.J., says at p. 273 "may" if not coupled with a duty is potential. As to claims for compensation: But for the dictum in Osborne v. Morgan (supra) there is no authority for the claim for damages. The defendants must have known that the leases could only be granted under s. 26, and if they spent money on the property they did so at their own risk. Ramsden v. Dyson (L.R. 1 H.L. 129, 140). By s. 26 (v) tenant entitled to tenant right see s. 51-to the extent of their being recouped by incoming tenant, they cannot get compensation from Crown. Hanslip v. Padwick (5 Exch. 615). The letter of the Crown refers to new lease only, and can only refer to some defect on the granting of a lease which only begins to run in 1910. It is noticed that the Crown regarded the lease as defective, and they go on at their own risk spending extra money. Campbell. Handslip v. Padwick (supra) lays down no principle of law that where the title of lessor is clear, and he has omitted to do something necessary to effectuate contract, he 1912. can escape the consequences of the breach of the contract. Carr ATTORNEYGENERAL v. De Britt (supra) has no bearing on facts in this case. Court said ss. 41 and 43 are to be taken in connection with s. 44. Cur. ad. vult. On the 2nd September, the following written judgment was delivered by A. H. SIMPSON, C.J. in Eq. (His Honor having stated the facts, said): The facts in this case are undisputed. The 12 years for which the respective three leases were granted expired on the 12th, 28th and 18th days respectively of December, 1910, but the defendants have remained in possession up to this day, and still are in possession. The informant asks that the extensions of the three leases may be declared void, and that the defendants may be ordered to deliver up possession. The defendants say the extensions are valid, or if not, are voidable, not void; so, if turned out they are entitled to compensation for moneys expended and losses sustained by them. The case turns entirely on provisions in the Crown Lands Acts. The material sections appear to be Crown Lands Act of 1884, s. 5: "Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the provisions of this Act and nothing in this Act shall affect the provisions of any Act regulating mining on Crown lands or shall affect the prerogative of the Crown in respect to any lands reverting by escheat or forfeiture to Her Majesty otherwise than under the provisions of this Act or any Act hereby repealed." Sect. 6: "The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose authorized by this Act and subject in every case to its provisions. No Crown grant issued after the commencement of this Act shall be expressed or purport to be in trust for private persons or purposes." Crown Lands Act 1889, s. 35, provides: "The Minister may, upon the recommendation of the Local Land Board, by notifi cation in the Gazette, declare any Crown lands wholly or partly covered by scrub or noxious undergrowth to be scrub lands; and may, on the recommendation of the Local Land Board, and v. BULL. |