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. A number of the lots shown in the two plans were sold and the transfers to the purchasers were registered before 30th March, 1967, the date on which the ordinance came into effect. Other lots were sold, in some cases before, and in other cases after, the date on which the ordinance took effect and the transfers to the purchasers of these lots were registered after that date. However, early in 1970, the Deputy Registrar refused to register the transfer of a further lot and this refusal began the dispute which has led to the present proceedings. The refusal of the Deputy Registrar was based on the contention that the transfer was,rendered ineffective by cl 4 of the ordinance which is in the following terms: 4.—(1) Subject to the next succeeding sub-section, a transfer, conveyance or other instrument providing for the sub-division of land does not have any force or effect unless and until— (a) the sub-division is approved by the Minister; and (b) a plan of the sub-division is registered by the Registrar of Lands in the Register of Plans of Sub-division, in accordance with this ordinance. (2) Nothing in the last preceding sub-section prevents the making of an agreement to sub-divide land, but such an agreement shall be deemed to be subject to a condition that the land shall be sub-divided in accordance with this Ordinance. It is common ground that the Minister has not given his approval to any subdivision of the land in question under cl 5 of the ordinance. There is no doubt that if cl 4 is applicable it renders the transfer ineffective. The question in the case is whether cl 4 applies. By cl 2 of the ordinance "subdivision" is given a definition in the following terms: "sub-division", in relation to land, means the dividing into parts— (a) by sale, transfer, conveyance or partition; or (b) by any agreement, dealing or instrument (other than a testamentary instrument or a lease for a term not exceeding five years without a right of renewal) rendering different parts of the land immediately available for separate disposition or occupation, whether the sale, transfer, conveyance or partition is executed, or the agreement, dealing or instrument is made or executed, in or outside Norfolk Island, but does not include— (c) the dividing of land into parts by reason only of the opening of a public road; or (d) the dividing of land into parts in accordance with the boundaries of lots in a previous sub-division lawfully made before or after the commencement of this ordinance. and "sub-divide" has a corresponding meaning. By cl 3, par (a), the ordinance does not apply to a subdivision of land made before the date of commencement of the ordinance. It is clear from the words of the definition of "subdivision" and "subdivide" that cl 4 does not apply to a transfer, conveyance or other instrument which provides for the division of the land into parts in accordance with the boundaries of lots in a previous subdivision lawfully made before 30th March, 1967. To divide the land into parts in that way and in those circumstances would not be a subdivision within cl 4 because it would be taken out of the definition of "subdivision" for the purposes of the ordinance by par (d) of the definition contained in cl 2. The question therefore becomes whether what was done by the appellant before 30th March, 1967, brought about "a previous subdivision lawfully made" within the meaning of par (d). There was no statute law in force in Norfolk Island before the date on which the ordinance came into effect which regulated the manner in which a subdivision of land might be effected. The owner of a parcel of land had an unrestricted right to divide it into parcels in whatever manner he wished, but of course the division had to be effective and the main contention advanced by Mr Thomson for the respondent in the present case is that the preparation and deposit of the plans showed no more than an intention to divide the land. In his submission the subdivision would only have been effective if the different parcels of the land had come under different ownership. On this view, in the present case there was a subdivision when each transfer was made, or perhaps when it was registered, but the residue of the land in the ownership of the appellant remained unsubdivided. If these contentions are correct it would appear that the exclusionary words of par (d) of the definition have little or no practical effect in relation to subdivisions made before the commencement of the ordinance. Clearly enough the owner of land on Norfolk Island could before 30th March, 1967, have subdivided it by transferring part of it to another person, but that was not the only way in which a subdivision might have been effected. In the present case the appellant had not merely prepared plans showing the division of the land into separate parcels, but he had, by depositing those plans for registration, taken the most effective step available to him to make the plans public and give them formal effect. It is unnecessary to consider what effect the law of Norfolk Island gave to the registration of the plans. Once the appellant had prepared and published the plans it was open to him to enter into contracts or make conveyances of parts of the land defined only by reference to the lots shown in the plans. The appellant did so and gave practical effect to the plans by transferring to other persons parcels shown on the plans as separate lots. These acts, taken together, in my opinion amounted to a separation of the entire parcel of land into a number of separate parcels, and, in the. absence of any provision limiting the manner in which subdivision might be effected, was a subdivision of the entire parcel of land into the lots shown in the plans. For these reasons, the transfer of any of the lots shown in the two plans does not provide for the subdivision of the land within cl 2 and is therefore not within the scope of cl 4. In reaching this conclusion it is unnecessary to rely on the provisions of cl 3(a) of the ordinance or on the fact that the appellant executed conveyances to himself. In my opinion the appellant was entitled to an appropriate declaration and the appeal should be allowed. Jacobs J. I agree, and I agree with the reasons which have been expressed. The construction adopted gives a sensible and consistent operation to par (d) of the definition of sub-division in cl 2 of the ordinance in respect of subdivisions lawfully made both before and after the coming into operation of the ordinance.