Langley v Foster [1906] HCA 28

4 OLR.) OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.}

LANGLEY : 4 _ : : E e APPELLANT; PLAINTIFE,

AND

FOSTER . i . i ss i t . RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Contract — Specific performance — Agreement for lease — Illegality — Intention of 4, ov A.

parties—Conditional lease under Crown Lands Acts— Breach of condition —Sub- lease for other than grazing purposes—Crown Lands Act (N.S.W.), (48 Viet. No. 18), secs. 96, 98—Timber Licenses Act (N.S.1W.), (No. 22 of 1902), Regula- tions February 1902.

Sec. 96 of the Crown Lands Act 1884 provides inter alia that every lease under the Act shall be liable to forfeiture upon breach of any condition annexed to the lease. Sec. 98, sub-sec. (1.) provides that no such lease other than a special lease shall confer any right to sub-let the leased land for other than grazing purposes or to prevent the entry and removal of material by authorized persons ; and sub-sec. (111.) provides that no lease shall prevent any authorized persons from cutting or removing timber from the land under lease, conditional leases being excepted from the sub-section as regards taking 'or removing timber or other material for building purposes. Sec. 133 provides 'that any person cutting timber other than firewood not for sale from any Crown lands shall be liable to a penalty, and that no lessee under the Act shall obstruct any authorized person from entering them. Regulations made under the Timber Licenses Act provide for the issue of licences or permits to cut and remove timber from Crown lands, subject to the proviso that in the case of land under conditional lease a special authority from the Minister or Forest Officer is necessary.

The respondent, the holder of certain conditionally purchased and con- ditionally leased lands, entered into an agreement to lease to the appellant the lands so held, with the right to cut and remove timber, and the right to construct a tramway across the lands for the removal of timber.