Stewart v Williams [1914] HCA 43

18 C.L.R.] OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.]

STEWART - : ( é ' ; : APPELLANT PLAINTIFF, AND WILLIAMS. i a : ; 5 : RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Crown Lands—Improvement lease—Condition not authorized by Statute—With- drawal of whole or part of land from lease—Reduction of rent—Ultra vires— Crown Lands Act 1884 (N.S.W.) (48 Vict. No. 18), secs. 5, 6—Crown Lands Act 1895 (N.S. W.) (58 Vict. No. 18), secs. 26, 27, 44.

The Crown Lands Act of 1884 (N.S.W.), by sec. 5, provides that Crown lands shall not be leased except under and subject to the provisions of that Act, and, by see. 6, that the Governor may grant leases of Crown lands, but only for some estate, interest or purpose authorized by that Act.

The Crown Lands Act of 1895 (N.S.W.), by sec. 26, provides that the Governor may grant leases (called 'improvement leases") of Crown lands which are not suitable for settlement until improved, and can only be rendered suitable by the expenditure of large sums in the improvement thereof, and that the granting of such leases shall be subject to certain pro- visions including the following :—" (1.) The term of the lease shall not exceed 28 years, and shall commence from the date of the execution of the lease" ; "(m) The amount bid at a sale by public auction of the lease or offered by an accepted tender shall be the yearly rent of the lease"; "(1v.) The lease may contain such covenants and provisions as to the Governor may seem expedient according to the circumstances of each case, and all such covenants and provisions shall be notified in the Gazette . before the lease is offered for sale or tenders called for. The lease shall contain covenants and provisions for the improvement of the land leased and for the expenditure of money thereon, for the payment of rent, and for the