OF AUSTRALIA. 1457 [HIGH COURT OF AUSTRALIA.] APPELLANT 3 AND fs 2 . RESPONDENT. ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. ri H.C. or A. fon-residential conditional purchase — Price to be paid by applicant — —~ ygq7, i —— By the provisions of secs. 26 and 35 of the Crown Lands Act 1884 the age jeant for a conditional purchase under that Act must pay to the Crown 4?7# 17, 18. Agent a deposit of two shillings per acre with his application, and, if ¢ mtn c, ti 1is application is confirmed by the Land Board, must, at the expiration of Cte years from its confirmation, pay an instalment on the purchase at the — Higgins JJ. of one shilling per acre and "a like instalment annually during a period until the balance of seventeen shillings per acre together with interest" paid. Certain conditions, including that of residence by the applicant, are tached to conditional purchases in general. Sec. 47 provides that Crown 'open to conditional purchase may be applied for and held without con- ns of residence, but subject to more onerous conditions and of a lesser area n in the case of ordinary conditional purchases ; and by sub-see. (iii.) *« the osit and all subsequent instalments shall be double those respectively bed on ordinary conditional purchases and 'shall be paid to the like and at the like periods." of meaning that the total price was to be the same as in the case of conditional purchases, the deposits and instalments being merely d in amount, and the period over which the latter extended thereby H.C. or A, 1907. i Mars v. Witrams. HIGH COURT shortened, the intention of the legislature, plainly expressed on the f the Statute, to discourage rather than to encourage conditional p without residence, justified the Court in following the decision of the Court in Walker v. Walker, (1901) 1 S.R. (N.S. W.), 70, and in constr sub-section as imposing an obligation upon applicants for such holdings to the same number of periodical instalments as would be necessary in the of conditionally purchased land subject to the condition of residence, corresponding intervals, and, therefore, in the end, to pay double the Decision of the Supreme Court, 22nd October 1906, affirmed. AppeaL from a decision of the Supreme Court of New Sout Wales. The appellant sued the respondent, as nominal defendant o behalf of the Government of New South Wales, to recover £4 1s. 6d., being the amount alleged to have been paid by him excess of the proper amount chargeable under the Crown Act 1884 in respect of a non-residential conditional pi The land out of which the area applied for was selected proclaimed as a special area under sec. 24 of the Act, and prices fixed for conditional purchases were £1 10s. per a deposit 3s. per acre for residential, and double those amounts ic non-residential conditional purchases. The appellant conter that there was no power under sec. 47 of the Act to maki price of non-residential conditional purchases higher than that residential for the same area, and therefore, having paid at t rate of £3 per acre, he claimed to be entitled to recover the exe over £1 10s. with interest. The action was tried by Pring J., without a jury, who found verdict for the defendant. On motion for a new trial the decision of Pring J. was affi by the Full Court, following their previous decision in Walker Walker (1). , High Court. The material sections of the Crown Lands Act are s set out in the judgment of Griffith C.J. Dr. Cullen K.C. and Pike (Boyce with them), for the appell (1) (1901) 1 S.R. (N.S.W.), 70. »R.] OF AUSTRALIA. 1459 Act of 1889 having amended sec. 47 sub-sec. (iii.) by the H. ©. or A. tion of the word " price," must be taken as an indication that Raed that word was inserted the sub-section meant something — \\arsu lifferent from what it means now. An amending Act is intended, = ima facie, to alter the law, not to declare it: The Queen v. (1). [They referred also to Walker v. Walker (2).} Wuitriams, 0. B. Stephen K.C. and Delohery, for the respondent, were not called upon. Grirrira C.J. This is an appeal from a decision of the Supreme Court, in which the question is raised whether under e Orown Lands Act 1884, before the amendment of 1889, nnditional purchasers acquiring land without the condition of esidence were bound to pay an increased price per acre for the Since 1889 no such question can arise, because in that year an was passed which puts an end to all doubt. The question ds upon the words of see. 47, sub-see. (iii.), of the Act of 1884, before reading that sub-section it will be convenient to refer to two earlier sections. The scheme of conditional purchases prescribed by the Act is known in New South Wales. The purchaser was allowed See. 26 provides that applications for conditional purchases be made in a prescribed manner, and that with the applica- there shall be lodged with the Land Agent a deposit at the of two shillings per acre of the area applied for. Then the ation comes before the local Land Board for confirmation. ec. 35 provides that every conditional purchaser at the end of he third year after the date of the confirmation of his applica- ent an instalment on his purchase at the rate of one shilling acre, and thereafter shall pay in like manner a like instalment nnually until the balance of seventeen shillings per acre, together (I) LR. 1C.C.R., 248. (2) (1901) 1 S.R. (N.S. W.), 70. 'H.C. or A. 1907. a Marsi v Witurams. Griffith 0.J. HIGH COURT with interest, shall have been paid. The absolute price at w the land is sold is not expressly mentioned, but it seems to been taken for granted that the price of country land was to b twenty shillings per acre. That is the necessary inference from th fact that a balance of seventeen shillings remains after payment of the deposit of two shillings and the first instalment of shilling. Under ordinary circumstances, therefore, the price the land conditionally purchased was twenty shillings per acre. Referring now to sec, 24, it bears indications of having bee inserted at a later stage of the Bill. It provides that the Governor in Council may by proclamation reserve what are called speci areas within which it will not be lawful to purchase conditionall more than one hundred and sixty acres (the ordinary area bei larger), and at such prices, (not being less than thirty shi per acre), deposits and instalments as shall be notified in proclamation. Now I come to see. 47, which provides that Crown lands open to conditional purchase may be purchased without conditions ol residence, subject to certain qualifications, of which I will to the following: first, the maximum area is limited to hundred and twenty acres; second, a person who takes advan- tage of this provision shall not be allowed to take up anoth conditional purchase under the Act, and a person who has ma conditional purchase under any of the Crown Lands Acts not take up or hold one under this section. Onerous condition of improvement are imposed, more onerous than those impose in other cases, and then comes the provision out of which arises: the question we have to determine. Sub-see. (iii.) is as follows "The deposit and all subsequent instalments shall be double respectively prescribed on ordinary conditional purchases a shall be paid to the like persons at the like periods." question is, what is meant by "the like periods." For Crown it is contended that these words are equivalent to saying "by the like or by corresponding periodical payments," mea that the number of payments is to be the same but the a are to be double. For the appellant it is contended that it means merely what it says, that the deposit shall be double, and each of the subsequent instalments shall be double. _ If it is OF AUSTRALIA. ts two shillings per acre, and that will be continued until the amount of £1 per acre has been paid. The words are probably capable of both constructions. The deposit and instalments together make up the price. It is not sly stated that the price shall be double, but the deposit be double, and the instalments are "to be paid to the like sons at the like periods." Bearing in mind the intention of the legislature, plainly expressed on the face of the Statute, that dence—actual occupation of the land by a resident oceupier— s in their minds, and that they were disposed rather to dis- e than to encourage purchasers of country land who were wn that, primd facie, it was not intended to grant them any iv not expressly stated. On the other hand, a burden cannot imposed except by clear words. I have come to the conclusion that the words "at the like eriods" mean by the same number of periodical payments, that double the money, and that these periodical payments will continue just as long as they would have continued if they had n made at the ordinary rate. The result is that in the end ble price must be paid. That has been the contention of the and it has been held by the Supreme Court in the case of vy. Walker (1) to be the right view, and I do not see any on to dissent from that conclusion. 'The appeal must therefore be dismissed. O'Connor J., Isaacs J., and Hicerns J. concurred. Appeal dismissed with costs. olieitor, for the appellant, J. Robinson (Forbes), by S. M. Raff: olicitor, for the respondent, Zhe Crown Solicitor of New C. A. W. (1) (1901) S.R, (N.S.W.), 70. pecial area the deposit will be four shillings, and the instal- H.C. oF A. 1907. ere Mars v WiuraMs. Griffith C.J.