Davies v Littlejohn [1923] HCA 64

Davies v Littlejohn [1923] HCA 64

The Crown Lands Consolidation Act 1913 (N.S.W.) establishes a statutory scheme for conditional purchases in which the Crown does not have a vendor's lien over the land for unpaid instalments, nor do such instalments constitute a charge or encumbrance on the land or the interest of the conditional purchaser; the potential for forfeiture for non-payment is an inherent part of the statutory right, not an extrinsic encumbrance or charge. Thus, under the will, 'charges or encumbrances' to be paid from residuary income do not include unpaid instalments owing to the Crown on conditional purchases.

Parties
Appellants: Davies and others; Respondents: Littlejohn and others
Jurisdiction
Australia
Judgment Date
20 December 1923
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales
Outcome
Appeal allowed. Order of Supreme Court of New South Wales varied.
Legal Topics
Construction of Wills, Vendor's Lien, Conditional Purchase Under Crown Lands Acts, Meaning of 'charge' or 'encumbrance', Nature of Statutory Landholding
Wills and Estates Property Law Construction of Wills Vendor's Lien Conditional Purchase Under Crown Lands Acts Meaning of 'charge' or 'encumbrance' Nature of Statutory Landholding

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Parties

Davies and others

Appellants

Littlejohn and others

Respondents

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether unpaid instalments owing to the Crown on conditionally purchased land are 'charges or encumbrances' under the terms of a will
  2. 2 Whether the Crown has a vendor's lien on conditionally purchased land for unpaid instalments under the Crown Lands Consolidation Act 1913 (N.S.W.)
  3. 3 Whether future unpaid instalments constitute a charge or encumbrance on the land or interest therein

Ratio Decidendi

The Crown Lands Consolidation Act 1913 (N.S.W.) establishes a statutory scheme for conditional purchases in which the Crown does not have a vendor's lien over the land for unpaid instalments, nor do such instalments constitute a charge or encumbrance on the land or the interest of the conditional purchaser; the potential for forfeiture for non-payment is an inherent part of the statutory right, not an extrinsic encumbrance or charge. Thus, under the will, 'charges or encumbrances' to be paid from residuary income do not include unpaid instalments owing to the Crown on conditional purchases.

Court Disposition

Appeal allowed. Order of Supreme Court of New South Wales varied.

Orders

  • Declaration that charges and encumbrances to be paid out of the surplus income of the residuary estate do not include the instalments on conditionally purchased lands which were unpaid at the date of death.
  • Omission of consequential orders treating such instalments as charges or encumbrances.