Capel v Williams and Michell [1909] HCA 50

Capel v Williams and Michell [1909] HCA 50

Setting apart Crown lands under sec. 4 of the Crown Lands Act Amendment Act 1905 does not render them unavailable for Volunteer Land Order selection. Such an application is not an application for a 'holding' under the Crown Lands Acts; as a result, the land remained open to conditional sale within the meaning of the Act, and the appellant's applications were valid.

Parties
Appellant / Plaintiff: Daniel Capel; Defendant / Respondent (nominal Defendant on Behalf of the Government of New South Wales): James Leslie Williams; Defendant / Respondent: Francis William Michell; Defendant / Respondent: Frederick Richard Michell
Jurisdiction
Australia
Judgment Date
16 August 1909
Procedural Posture
Appeal / On Appeal From Supreme Court of New South Wales (equity), After Suit Dismissed at First Instance
Outcome
appeal allowed
Legal Topics
Volunteer Land Orders, Crown Lands Acts, Conditional Sale, Government Powers, Statutory Exemptions, Classification of Crown Lands
Land Law Statutory Interpretation Administrative Law Volunteer Land Orders Crown Lands Acts Conditional Sale Government Powers Statutory Exemptions +1 more

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Parties

Daniel Capel

Appellant / Plaintiff

James Leslie Williams

Defendant / Respondent (nominal Defendant on Behalf of the Government of New South Wales)

Francis William Michell

Defendant / Respondent

Frederick Richard Michell

Defendant / Respondent

Procedural Posture

Appeal / On Appeal From Supreme Court of New South Wales (equity), After Suit Dismissed at First Instance

Legal Issues

  1. 1 Whether Crown lands set apart by the Minister under sec. 4 of the Crown Lands Act Amendment Act 1905 cease to be 'open to conditional sale' as against holders of Volunteer Land Orders
  2. 2 Whether the application for a free grant under the Volunteer Force Regulation Act 1867 is an application for a 'holding' within the meaning of the Crown Lands Acts
  3. 3 Whether the notification by the Minister affects the rights of Volunteer Land Order holders

Ratio Decidendi

Setting apart Crown lands under sec. 4 of the Crown Lands Act Amendment Act 1905 does not render them unavailable for Volunteer Land Order selection. Such an application is not an application for a 'holding' under the Crown Lands Acts; as a result, the land remained open to conditional sale within the meaning of the Act, and the appellant's applications were valid.

Court Disposition

appeal allowed

Orders

  • Judgment and decree appealed from discharged.
  • Declaration in terms of 1st and 3rd paragraph of statement of claim to be made; plaintiff's applications for grants are valid.