Firth v Halloran [1926] HCA 24

OF AUSTRALIA. 261

{HIGH COURT OF AUSTRALIA.}

ds Oa ' f 5 a c a 5 . APPELLANT ; DeEFENDANT, AND -HALLORAN . fe) se hs ... RESPONDENT.

PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Landlord and Tenant—Lease—Frustration of contract—Impossibility of performance

H.C. of A. —Briction by title paramount—Authority to enter to prospect for coal—Application "14 ney for mining lease—Mining Act 1906 (N.S.W.) (No. 49 of 1906), secs. 70a, 700— —Mining (Amendment) Act 1918 (N.S.1.) (No. 41 of 1918), sec. 4. pemieiss

The plaintiff was the registered proprietor of 857 acres of land. By a 41-2 memorandum of lease of 14th October 1913 he leased to a person, of whom the defendant was the executrix, 20 acres out of the whole area, and also the mines,

or silver at the depth exceeding 300 feet below the surface within and under the whole 857 acres. The lease empowered the lessee to carry on mining operations on payment of a royalty in respect of all coal won. This royalty was to be set off pro tanto against a fixed rent of £150 for the first six months and thereafter of £600 per annum. The lease expressly provided that it should not be obligatory on the lessee to carry on mining operations so long as he paid the fixed rent, and it contained a covenant for quiet enjoyment. Rent was paid until June 1922 and was tendered up to October 1922. In that month authority to enter portion of the demised lands, not including the 20 acres mentioned in the lease, was, pursuant to sec. 70 of the Mining Act 1906 (N.S.W.)—enacted by sec. 4 of the Mining (Amendment) Act 1918 (N.S.W.) —granted to A for the purpose of prospecting for coal and shale. On 9th November 1922 A applied to the Minister for Mines for leases under the Mining Act of the lands covered by his authority to enter. Those applications were