Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13

High Court of Australia Barwick C.J. McTiernan and Gibbs JJ. Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13

ORDER Declaration of the Supreme Court of New South Wales in Equity that it is not a term of the contract between the plaintiff and the defendants whereby the plaintiff is bound to purchase from the defendants and the defendants are bound to sell to the plaintiff the land referred to in the option dated the 6th day of November last granted by the defendants to the plaintiff that the defendants are obliged pursuant to s. 31 (4) of the Closer Settlement Act 1904 (as amended) to apply to the Minister for Lands for and to do everything necessary to obtain the Certificate referred to in that subsection set aside and in lieu thereof declare that the contract between the appellant and the respondents was duly rescinded by the notice of rescission given by the respondents on 30th March 1972 and that there is now no contract subsisting between the appellant and the respondents for sale and purchase of the land referred to in the option dated 6th November 1971 given by the appellant to the respondents. Otherwise the appeal is dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1973, May 10 Barwick C.J.

Some time ago the respondents husband and wife made a settlement purchase of thirty-three acres of land at Commercial Road, Vineyard, near Sydney, under the provisions of the Closer Settlement Act, 1904 N.S.W., as amended, (the Act). In due course they became entitled to a Crown grant in respect of this land for which s. 34 of the Act provides. Accordingly, a settlement purchase grant was made by the Crown and duly registered under the provisions of the Real Property Act, 1900 N.S.W., as amended. However, s. 31 of the Act provides that no holder of a settlement purchase can transfer, convey, assign or lease such a purchase without having first obtained the written consent of the Minister. Section 30 of the Act further provides that, subject to that section, no person shall unless qualified under s. 26 of the Act acquire by transfer or otherwise a settlement purchase. It is clear from the provisions of the Act that this statutory limitation on the capacity of the holder of a settlement purchase to transfer continues to operate notwithstanding the issue of the settlement purchase grant and its registration under the provisions of the Real Property Act. See s. 4 of the Act, definition of "settlement purchase". Accordingly, the Registrar-General by means of a stamp indorsed on the folium of the certificate of title in the names of the respondents the following statement—"Attention is hereby directed to the provisions of s. 31 of the Closer Settlement Act 1904 relating to transfer".