Borserio v Minister for Lands (NSW) [1955] HCA 48

High Court of Australia McTiernan, Williams, Fullagar, Kitto and Taylor JJ. Borserio v Minister for Lands (NSW) [1955] HCA 48

ORDER The answer to question Number (2) should be varied to read No. Subject to that variation of the answer given by the Supreme Court to question (2), appeal dismissed with costs.

The following judgment of the Court was delivered by McTiernan J:

McTiernan, Williams, Fullagar, Kitto and Taylor JJ.

This is an appeal from a judgment of the Full Court of the Supreme Court of New South Wales, given upon a case stated by the Land and Valuation Court.

The case stated concerned an application which the present appellant had instituted for the conversion of a Crown lease into a conditional purchase, under s. 184 of the Crown Lands Consolidation Act 1913 N.S.W., as amended. It is provided by sub-s. (1) of that section that "Upon application as prescribed the holder or the owner (subject to mortgage) of any settlement lease or Crown lease which is not liable to forfeiture may convert such lease into a conditional purchase " The sub-section goes on to make a number of provisions, in lettered paragraphs, to apply to any such application. We need mention only par. (f), which provides that upon confirmation by the local land board the conversion shall be deemed to have taken effect as from the date of application for conversion.

The appellant lodged an application for conversion of his Crown lease into a conditional purchase on 17th July 1951. At that time he was recorded in the books of the Lands Department as the holder of the Crown lease; and the books, apparently through some departure from the usual practice, also showed that the Bank of New South Wales was the mortgagee of the holding. Even if it were considered that because of this entry in the books the appellant was not the holder of the Crown lease within the meaning of s. 184, it would nevertheless follow that he was the owner subject to mortgage. It may therefore be taken that he was competent to lodge the application for conversion. He had, it is true, already contracted with one Livermore to sell the Crown lease to him, but we shall assume without deciding that the existence of that contract created no obstacle to the application. Before the application was dealt with by the local land board, however, the appellant transferred the lease to Livermore, and on 17th August 1951, the transfer was registered in the books of the Lands Department. In the meantime, namely on 20th July 1951, the land comprised in the Crown lease became reserved from sale, and by reason of s. 188 it was not thereafter convertible into a conditional purchase unless and until the reservation should be revoked: see Hawkins v. Minister for Lands [1] . This has not happened, and consequently Livermore is not entitled at present, and may never become entitled, to make an application of his own for conversion. It has been assumed, however, that the appellant's application, having been instituted before the reservation was made, is unaffected by the reservation, and we are content, without expressing any opinion upon it, to accept this assumption for the purposes of the appeal.