BROMLEY v THE FORESTRY COMMISSION OF NSW [2001] NSWCA 34

Reported Decision : (2001) 51 NSWLR 378 [2001] ACL Rep 355 NSW 15

New South Wales Court of Appeal

CITATION : BROMLEY v THE FORESTRY COMMISSION OF NSW [2001] NSWCA 34 FILE NUMBER(S) : CA 40754/99 HEARING DATE(S) : 31 January 2001 JUDGMENT DATE : 5 March 2001

PARTIES : JAMES EDWARD BROMLEY & 2 ORS v THE FORESTRY COMMISSION OF NEW SOUTH WALES JUDGMENT OF : Mason P at 1; Heydon JA at 76; Ipp AJA at 80

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 1847/96 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

COUNSEL : Appellant: A S Martin SC Respondent: S J Gageler SC SOLICITORS : Appellant: Deacon Graham & James Respondent: Crown Solicitor's Office CATCHWORDS : Crown lands - Crown Lease - Crown Lands Consolidation Act 1913 - special condition - Forestry Act 1916 - compensation for damage - royalties paid to Crown on timber removed - whether statutory change abrogated lessee's rights - failure to prove damage - declaratory relief. ND DECISION : See par 75 of Judgment

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40754/99 CD 1847/96 MASON P HEYDON JA IPP AJA

Monday 5 March 2001 James Edward BROMLEY & 2 Ors v THE FORESTRY COMMISSION OF NEW SOUTH WALES

The appellants have since 1976 been lessees of a Crown lease that had been issued under the Crown Lands Consolidation Act 1913 subject to reservations from sale generally affecting portions thereof. Special Condition (n) of the lease provides that the lessee shall be allowed "compensation to the amount of one-third of any royalty paid to the Crown on timber removed from the forest area, to cover any damage done to his interests in the holding by licensed timber operations".