Bromley v Forrestry Commission [2002] NSWSC 883

New South Wales Supreme Court

CITATION : Bromley v Forrestry Commission [2002] NSWSC 883 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1847/96 HEARING DATE(S) : 13, 14 June 2002; 9, 27 September 2002 JUDGMENT DATE : 29 October 2002

PARTIES : James Edward Bromley & Ors v Forrestry Commission of New South Wales JUDGMENT OF : Acting Justice Macready at 1

COUNSEL : Mr A.S. Martin for plaintiffs Mr G.C. Lindsay for defendant SOLICITORS : Deacons for plaintiffs Crown Solicitor for defendant CATCHWORDS : Real Property & Crown Lands. Construction of conditions in a Crown Lease and damages for breach of terms. On facts no damage proved. DECISION : Paragraph 44

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Acting Justice Macready

Tuesday 29 October 2002

1847 of 1996 James Edward Bromley & Ors v Forrestry Commission of New South Wales JUDGMENT 1 His Honour: This is the hearing of claims for compensation and damages in respect of two conditions contained in Crown Lease 1919/1. The Crown Lease is in respect of certain areas in the Barrington Tops mountain area in New South Wales. There were originally proceedings which were heard by Bergin J in 1999 when she made orders for determination of royalties which were due to the plaintffs as a result of forestry operations conducted on the land. Those royalties have been determined and the amounts due have been paid to the plaintiffs. 2 Her Honour also dismissed a claim for compensation based upon special condition (n) of the Crown Lease. There was an appeal to the Court of Appeal in respect of that part of Her Honour's judgment and the Court found that the plaintiff was entitled to compensation. The orders of the Court of Appeal included the following: -- 5. Declare that upon the proper construction of special condition (n) of the crown lease 1919/1 ("the lease") the appellants are and were entitled to be paid by the respondent compensation for any damage done to their interests in the lease holding by licensed timber operations to the amount of one-third of any royalty paid to the respondent on timber removed from the forest areas of the lease. 6. Order that the issue whether the appellants have suffered any damage to their interests in the lease holding by reason of the activities of licensed timber operations and, if so, the amount of any such damage be remitted to the equity division for hearing. 3 The Court of Appeal also gave leave to the appellants to amend their statement of claim to include a claim for damages for breach of special condition (k). A judge of the court has ordered that both these claims be determined by a Master of the court and I commenced the hearing when I was a Master of the Court. The background facts 4 The Crown lease which was issued in 1919 covered 4856 acres and was over portion 64 in the parish of Tomalla County of Hawes and land district of Scone. It was originally for 45 years but in 1940 was made a lease in perpetuity. The present plaintiffs purchased the land on 7 May 1976. The lease was subject to a number of conditions as to the payment of rent and otherwise. Obviously special conditions (k) and (n) are of importance. Other special conditions also require consideration and the relevant ones are as follows: -- ……………….. (b) That the lessee shall not nor will assign except by way of mortgage or release of mortgage or sublet the said land or any part thereof without the consent in writing of Our Minister for Lands being previously had and obtained: provided that if stock not owned by the said lessee are found depasturing on the said land the same shall constitute prima facie evidence of such subletting. ……………. (g) That no timber shall be cut or removed from the land for the purpose of sale, except subject to the provisions of the Forestry Act, 1916, and the Regulations thereunder at the time in force. (i) The Lessee may, however, take from the land leased to him such timber and other material for building and other purposes upon such land as may be required by him as tenant thereof provided such land is not comprised within a Timber Reserve or State Forest. (j) That all persons specially authorised in that respect shall without interference by the lessee have full right to enter upon the said land at any time within reasonable hours during the currency of these presents for the purpose of cutting or removing timber without interference by the lessee and the lessee shall provide convenient gateways or openings where required for this purpose or where directed by the Minister or any Officer authorised by the Minister in that behalf and shall, subject to the provisions of Section 31 of the Forestry Act, 1916, or any Act amending or replacing the same, allow permittees thereunder to enter upon and remain upon the said land and to exercise therein all the rights and privileges conferred by their respective permits.