Wallace v Dixon

High Court of Australia Barwick CJ Gibbs and Jacobs JJ. Wallace v Dixon

ORDER Objection to competency overruled with costs. Appeal allowed with costs. Order of the Supreme Court of Norfolk Island set aside and in lieu thereof declare that the allotments of land referred to and described in the Plan of Subdivision lodged at the Office of the Registrar of Lands of Norfolk Island and numbered 43/4 and also the allotments of land referred to and described in Plan of Subdivision No. S.044 also so lodged constitute, in the circumstances set out in the affidavit of Arthur Gordon Wallace sworn herein the 23rd August, 1973, a previous subdivision of land lawfully made within the meaning of the Land (Sub-division) Ordinance 1967 of Norfolk Island and made before the date of commencement of the said ordinance. Respondent to pay appellant's costs of the proceedings in the Supreme Court of Norfolk Island. May 13. Barwick CJ

I agree with the reasons which have been expressed by my brother Gibbs J.

In my opinion, what was done in this case by the appellant, in the circumstances in which he did it, constituted a "subdivision lawfully made" within the meaning of the Land (Sub-division) Ordinance 1967 of Norfolk Island. I would allow the appeal and make an appropriate declaration.

Gibbs J.

This is an appeal from a judgment of the Supreme Court of Norfolk Island in proceedings in which the appellant sought a declaration that certain parcels of land shown as separate lots on two identified plans were a subdivision within the meaning of the Land (Sub-division) Ordinance 1967 of Norfolk Island to which for convenience I shall refer as "the ordinance". The learned primary judge refused the declaration sought.

The facts out of which the appeal arises may be shortly stated. In 1960, the appellant made a number of purchases of land on Norfolk Island amounting in total area to 59 acres. In 1961 the appellant had a plan drawn up showing the division of the 59 acres into a number of lots. This plan was deposited at the office of the Registrar of Lands and was designated with the number 43/4. Another plan for the further subdivision of some of the lots was prepared in 1966 and was deposited in the office of the Registrar of Lands and designated No. S.044. The appellant executed documents, styled conveyances, in which he was both the grantor and the grantee in respect of the lots shown in these plans.