Harris v Minister for Public Works (NSW)

[1914] HCA 85

19 CLR 180

HARRIS AND ANOTHER

THE MINISTER FOR PUBLIC WORKS,

NEW SOUTH WALES

SUSAN MARY NEWTON HARRIS

THE MINISTER FOR PUBLIC WORKS,

NEW SOUTH WALES

WILLIAM HENRY HARRIS

THE MINISTER FOR PUBLIC WORKS,

NEW SOUTH WALES

ON APPEAL FROM THE SUPREME COURT OF Land Resumption by Crown-Compensation - - Valuation- - Land held in successive

interests-Separate valuation of interests-Land vested in executors-Life tenant and remainderman-Public Works Act 1912 (N.S. W.) (No. 45 of 1912), SYDNEY,

secs. 42, 43, 45, 102, 103.* Dec. 3, 4, 15,

* The Public Works Act 1912 provides By sec. 42, that "for the purpose

been appropriated (if Crown land) or of carrying out any authorized work,

resumed (if private property) for the if the Governor directs that any land

public purpose therein expressed.' required for such work shall be taken

By sec. 43, that upon such notifica- under this Division of this Act, he

tion the land shall be vested in the Con- may, by notification to be published

structing Authority on behalf of the

19 CLR 181

When land which is taken by the Crown for public purposes under the Public Works Act 1912 is held by different persons for successive estates, or the total interest is otherwise divided, the compensation payable by the Crown in respect of the land taken is to be assessed once for all, and the individual owners of estates or interests in the land are not entitled to separate assessments of the value of their individual estates or interests.

So held by Griffith C.J. and Barton J., Isaacs J. dissenting. The legal estate in a block of land which was compulsorily acquired by the Crown by notification in the Gazette pursuant to sec. 42 of the Public Works Act 1912, was vested in the executors of a will by which one portion of the block was devised to a life tenant and a remainderman and the other portion was devised to trustees upon certain trusts. Separate claims for compensation were made-by the executors in respect of the whole block, by the life tenant in respect of her interest, and by the remainderman in respect of his interest and the Crown made one valuation of the whole block.

Held, that mandamus should not go to compel a separate valuation of the interest of the trustees, the life tenant, or the remainderman

By Griffith C.J. and Barton J., on the ground that under the Act the Crown was only concerned with the value of the physical object taken and that that value was to be ascertained once for all, as had been done

By Isaacs J., on the ground that, a claim in respect of the whole block having been made by the owners of the legal estate with the authority of the trustees, the life tenant and the remainderman, and a valuation of the whole block having accordingly been made by the Crown, the Crown was under no duty to make any valuation of the separate interests.

Decision of the Supreme Court of New South Wales Ex parte Harris, 14 S.R. (N.S.W.), 109, affirmed. Crown in fee simple in possession, freed

provided and making out his title in respect of any portion of the said By sec. 45, that (1) The estate and

resumed lands be entitled to compen- interest of every person entitled to

sation on account of such resumption lands resumed under this Division of

in manner hereinafter provided." this Act or any portion thereof and

By sec. 102, that " every person whether to the legal or equitable

claiming compensation in respect of interest therein shall by virtue of this

any land resumed under any such noti- Act be deemed to have been as fully

shall," within a prescribed and effectually conveyed to the Con-

time, " serve upon the Constructing structing Authority as if the same

Authority and upon the Crown Solici- had been conveyed by the persons

tor a notice in writing setting forth legally or equitably entitled thereto by means of the most perfect assur-

interest of the claimant in such land, ances in the law. (2) Every such

together with an abstract of his title." estate and interest shall, upon the

By sec. 103, that " the Constructing publication of such notification as aforesaid be taken to have been con-

no prima facie case for compensation verted into a claim for compensation

is disclosed) cause a valuation of the in pursuance of the provisions herein-

land, or of the estate or interest of the after contained. (3) Every person shall

claimant therein, to be made in accord- upon asserting his claim as hereinafter

ance with the provisions of this Act."

19 CLR 182

APPEAL from the Supreme Court of New South Wales.

Certain land in Sydney, New South Wales, known as "Block 35 Ultimo Estate" was resumed by the Crown by notification in the Government Gazette pursuant to sec. 42 of the Public Works Act 1912. The land formed part of the estate of William Henry WORKS,

Harris, deceased, who by his will devised portion of Block 35, being the mansion house and grounds attached thereto and known as Livingstone House, to his wife, Susan Mary Newton Harris, for life, and after her death to his son, William Henry Harris and his heirs for ever. The other portion of Block passed under a gift of the residue to certain trustees upon certain trusts. At the date of the resumption the trustees were Susan Mary Newton Harris, Ada Mary Harris and William Henry Harris. At that date Livingtone House was in the occupation of the life tenant, Mrs. Harris, and the remainder of Block 35 was in the occupation of various tenants. The testator appointed George Harris, Ada Mary Harris and William Henry Harris executors and executrix of his will, and probate had been granted to them. George Harris had since died. Three separate claims for compensation each in the form of the Sixth Schedule to the Public Works Act 1912 were made. The first was by "Susan Mary Newton Harris, Ada Mary Harris and William Henry Harris, executors of the will of the late William Henry Harris," and was in respect of the whole of Block 35; the second was by "Susan Mary Newton Harris, tenant for life," and was in respect of Livingstone House and grounds; and the third was by " William Henry Harris, remainderman," and was also in respect of Livingstone House and grounds.

A notice of valuation was sent by the Crown addressed to 'Susan Mary Newton Harris and William Henry Harris as life tenant and remainderman respectively, Susan Mary Newton Harris and Ada Mary Harris as trustees, and Ada Mary Harris and William Henry Harris as executrix and executor, of the will of the late William Henry Harris"; and it set out a specified sum as being the value of the whole of Block 35 which was stated to embrace all items of claim. Thereupon three rules nisi for mandamus were obtained, the first by Susan Mary Newton Harris, Ada Mary Harris and William Henry Harris, described

19 CLR 183

as "trustees of the will of the late William Henry Harris," to compel the Minister for Public Works to make a valuation of

the claim of the above-named trustees"; the second by Susan Mary Newton Harris, to compel the Minister for Lands to make a valuation of her life interest; and the third by William Henry Harris, to compel the Minister for Lands to make a valuation of his interest as remainderman.

On the return of the rules nisi the Full Court ordered them to be discharged: Ex parte Harris 1.

From that decision the above-named trustees, the life tenant and the remainderman now separately appealed to the High Court, and the appeals were heard together.

The nature of the arguments appears from the judgments herein.

Campbell K.C. and Rolin K.C. (with them Pitt), for the appellants.

Knox K.C. (with him Blacket K.C. and Pike), for the respon- dent.

During argument reference was made to Perry v. Clissold 2; Kelland v. Fulford 3; Abrahams v. London Corporation 4; Edwards v. Commissioner for Railways 5; Frank Warr &Co. Ltd. v. London County Council 6; Re Harris 7; Clayton V. Montgomery 8; Perpetual Trustee Co. v. Holt 9; Williams V. Permanent Trustee Co. of New South Wales Ltd. 10; Askew V. Woodhead 11.

Our. adv. vult.

GRIFFITH C.J. read the following judgment :-The substantial question raised in these appeals is whether, when land which is taken by the Government for public purposes is held by different persons for successive estates, or the total interest is otherwise divided, the compensation payable by the Government in respect

114 S.R. (N.S.W.), 109. 2(1907) A.C., 73. 36 Ch. D., 491. 4L.R. 6 Eq., 625. 512 S.R. (N.S. W.), 117. 6(1904) 1 K B., 713. 722 W.N. (N.S.W.), 187. 818 N.S. W.L.R. (Eq.), 171. 915 N.S. W.L.R. (Eq.), 18. 10(1906) A.C., 249. 1114 Ch. D., 27, at p. 35. 19 CLR 184

of the land taken is to be assessed once for all, or whether the

individual owners of estates or interests in the land are entitled to separate assessments of the value of their individual interests. Alternatively, the claim is made that if one particular form of procedure is adopted by the Government in taking the land this WORKS,

consequence follows, whether it does or does not follow if a different form of procedure is adopted.

The subject is now regulated by the Public Works Act 1912, which is entitled " An Act to consolidate the Acts relating to Public Works," and is itself, SO far as regards the present ques- tion, a re-enactment of the Public Works Act 1900, which was a consolidation of several earlier Statutes.

That Act, like the present Act, permitted the acquisition of land by either of three methods: purchase by agreement, compulsory taking after notice to treat, and taking by notification of resump- tion published in the Government Gazette. The first two of these methods have been familiar for many years. A complete statutory code relating to such matters was formulated in the United Kingdom by the Lands Clauses Consolidation Act of 1845, the provisions of which were substantially adopted in New South Wales with regard to Government railways by the Act 22 Vict. No. 19. A limited power of resumption of land for military purposes had been conferred by an earlier Act, 18 Vict. No. 10, but the provisions of that Act, which were repealed by the Act next to be mentioned, do not throw any light upon the question now under consideration.

A general power to take land for public purposes was first conferred on the Government by the Act 44 Viet. No. 16 (1880) called the Lands for Public Purposes Acquisition Act, which enacted (sec. 6) that whenever certain conditions had been fulfilled the Governor might by notification published in the Gazette and a local newspaper or newspapers declare that the land described in it had been resumed for the public purposes therein expressed, and (sec. 8) that upon such publication the land SO described should forthwith be vested in the Minister on behalf of the Crown for an estate of inheritance in fee simple in possession free from all other estates, interests or claims what- soever. Sec. 11 provided that the estate or interest of any

19 CLR 185

person entitled to land SO resumed, whether legal or equitable, should by virtue of the Act be deemed to have been effectually conveyed to the Minister and to have been converted upon the publication of the notification into "a claim for compensation," and that every person upon asserting his claim in the prescribed manner and making out his title " in respect of any portion' of the resumed lands should be entitled to compensation on account of the resumption in manner provided by the Act.

The claimant was required (sec. 12) to assert his claim by serving notices in writing upon the Minister and the Crown Solicitor in a prescribed form (Sched. 1), by which the claimant was required to state the nature of his interest " whether tenant for life in tail or otherwise," after which the Minister was required (sec. 13) to cause a valuation to be made of the land or of the estate or interest of the claimant therein." If no agreement as to the amount of compensation was come to within ninety days it was to be determined by a jury in proceedings in the nature of an action. Sec. 20 enacted that notwithstanding the foregoing provisions the Minister might agree with the owners or any of the persons empowered by the Act to sell the land for the absolute purchase for a money consideration of the land and all estates and interests in it of any kind whatever.

Then followed provisions, practically the same as those in the Lands Clauses Consolidation Act, empowering certain specified persons having limited interests in the land, or being under a disability, to convey the land to the Minister, and for paying the price into Court.

By a later Act (51 Vict. No. 37), of which the short title is the Public Works Act of 1888, it was enacted (sec. 19) that the Governor might direct that any land required for any authorized work might be acquired either by taking it under the Lands for Public Purposes Acquisition Act, or under the provisions of Part III. of the Public Works Act. Part III. was, in effect, a re-enactment of the provisions of the former Act with extended application, followed by an enactment of the provisions of the Lands Clauses Consolidation Act, which, as already said, had previously been adopted SO far as regards lands taken for rail-

19 CLR 186

ways, under which the amount of compensation, in the absence

of agreement, was to be settled by arbitration.

All these provisions were re-enacted in the Acts of 1900 and 1912 with such variations in language as to make them more in conformity with modern parliamentary drafting.

The first observation that it occurs to me to make is that the object of the legislature was to facilitate the acquisition of land by the Crown, and that it was no part of its purpose to make any substantial change in the rights of the owners of the land taken as between themselves, except SO far as was involved in the change of the property from land to money. The second observation I will make is that it was no part of the purpose of the legislature to make the substantial rights of the owners of the land to share in the money substituted for it dependent upon the mode adopted by the Crown for making the acquisition. These positions appear to me to be elementary. The first of them is illustrated by the case of Askew v. Woodhead 1.

It was forcibly observed by Mr. Knox that no instance is to be found of a claim for compensation by a tenant for life being made the subject of a separate assessment as distinguished from an assessment of the value of the land, or of an adjustment either by arbitration or a jury of the respective rights of a tenant for life and remainderman. The only cases referred to in Halsbury's Laws of England, vol. VI., under the head of Compulsory Pur- chase and Compensation" tend to exclude the notion of such an adjustment. Thus, in In re Ware and The Regent's Canal Co. (2) it was contended that an arbitrator appointed under the Lands Clauses Consolidation Act should have apportioned the rent when part only of leasehold premises taken under the Act had been taken. The Court of Exchequer held that he had no power to do so, because the landlords were no party to the submission, "and of course no apportionment of the rent would have been binding upon them."

Similarly, in the case of tenant for life and remainderman, if an appointment of the capital money were made on the claim of the tenant for life it would not be binding upon the remainder- man, and vice versa. It is clear, indeed, that if land is taken by

114 Ch. D., 27. 19 CLR 187

the procedure commonly called "Notice to Treat" such a question could not arise, for the resuming authority would take a convey- ance from one of the persons authorized by the Act to convey, and the money would be paid into Court under the provision which stands as sec. 54 of the Public Works Act 1912, when the respective rights of the tenant for life and remainderman would be determined by the Court under the provision which stands as sec. 55 of that Act, by which until such determination the income would be payable to the party who would for the time being have been entitled to the rents and profits. This seens to me expressly to negative the idea that the tenant for life could claim a portion of the capital sum paid by way of compensation. This view is strongly confirmed by the provisions of sec. 58, which allows the Court in special cases to make a special allotment of a portion of the capital sum to the tenant for life.

It is said in Halsbury's Laws of England, vol. VI., at p. 67, that each party on whom a notice to treat has been served is entitled to have the compensation as regards his own particular interest assessed separately. The cases cited in support of this position are Fotherby v. Metropolitan Railway Co. 1, in which the claim was in respect of an entire and undivided interest, and Abrahams v. London Corporation 2, which was a case of a lease with several underleases. The distinction between the estate of a tenant for life and the estate of a lessee, SO far as regards assessment, is SO plain as not to require elaborate exposi- tion. The value of the lessee's interest in his term does not depend upon any apportionment of a lump sum, while, on the other hand, in the case of a life estate the total value of the land, which is a single sum payable by the resuming authority, must, if the argument is correct, be apportioned between the tenant for life and remainderman. Either, therefore, the resuming authority is entitled to say that there shall be a single assess- ment and that the competing claimants to the amount assessed must settle their differences between themselves, or there must be separate assessments by separate juries, in which neither claimant is bound by the verdict of the jury in the case to which he is not a party, with the result that the authority may be

1L.R. 2 C.P., 188. 2L.R. 6 Eq., 625. 19 CLR 188

called upon to pay a sum in excess of the total value of the

Further, it appears to me that the value of the estate of a tenant for life, which depends on conditions personal to the tenant is not a proper subject matter of a valuation to be made WORKS,

by the resuming authority, which is only concerned with the value of the physical object taken. Nor can it be said with truth that to give the tenant for life part, and the remainderman the rest, of the compensation money would not be to make a substantial variation in their respective rights. That of the tenant for life is to the usufruct only, that of the remainderman to the enjoyment of the corpus after the determination of the life estate. Under some circumstances and for certain purposes it may be necessary to capitalize the present value of the usufruct and ascertain the present value of the futurity, as in the case of annuities given by a testator whose estate is deficient, but there is no like necessity in such a case as the present.

For these reasons I am of opinion that in the case of land taken by notice to treat a single assessment only can be made.

The argument for the appellants is mainly based upon some expressions used in the Public Works Act 1912 relating to resumption by notification. It is contended that, even if the construction which I adopt correctly expresses the law as applic- able to land taken by notice to treat, the law is different as to land taken by notification. I have already pointed out the improbability of the legislature having intended that the sub- stantial rights of persons having partial interests in land taken should be affected by the mode adopted by the resuming authority in making the resumption. This view is strongly fortified, if not indeed completely established, when regard is had to the structure of the Act itself. Sec. 54, which requires the compensation money to be paid into Court when land is taken from persons having partial interests only in the land or persons under disability, and secs. 55 and 58 which deal with the applica- tion of the money paid into Court, are included in Part VI. of the Act, which consists of a group of sections, numbered 50 to 100 inclusive, and headed "Provisions applicable to every case where land is taken under this Act." The effect of this grouping

19 CLR 189

OF AUSTRALIA, was considered by the Judicial Committee in the case of Williams V. Permanent Trustee Co. of New South Wales Ltd. 1, the effect of which is that the whole of the provisions of this group of sections apply, if otherwise applicable, to land taken by notifica- tion as well as to land taken by notice to treat. If the money must in any case be paid into Court and disposed of as pro- vided by the sections just referred to, the notion that separate assessments are to be made is excluded. The express enactments particularly relied on are secs. 45 and 102.

Sec. 45, after providing that upon the publication of the notification of resumption the estate and interest of "every person" entitled to lands resumed or any portion thereof shall be deemed to be conveyed to the Constructing Authority and shall be taken to have been converted into a claim for compensation, enacts that any person shall upon asserting his claim as therein- after provided and making out his title in respect of "any portion" of the resumed land be entitled to compensation. The word "portion," which plainly refers to a separate physical entity and not to an undivided estate or interest, is not unimportant, for it is settled that the proceedings for assessing compensation have no reference to title. (See Halsbury's Laws of England, vol. VI., p. 76). Sec. 102 provides that every person claiming compensa- tion in respect of any land resumed by notification shall within the prescribed time serve a notice upon the Constructing Authority and Crown Solicitor setting forth the nature of his estate or interest in the land with an abstract of his title. A form of notice is given in the Sixth Schedule, which requires particulars to be given, specifying the nature of his interest whether tenant for life, in tail or otherwise, and specifying separately the amount claimed for "value of property" and for "compensation." note in passing that he is not required to specify the value of his estate or interest in the property-unless, indeed, that is implied by the word "compensation." Sec. 103, however, requires the resuming authority within a prescribed time (unless no prima facie case for compensation is disclosed) to cause a valuation of the land, or of the estate or interest of the claimant therein," to be made. If an agreement is not then come to the claimant may

1(1906) A.C., 249. 19 CLR 190

institute proceedings in the Supreme Court in the form of an

action for compensation.

The words "or of the estate or interest of the claimant therein" give rise to an apparent difficulty. There is no doubt, I think, that every person who has any estate or interest in the land is WORKS,

entitled to make a claim, and to have the value of the land assessed. But the question is whether each such person is entitled to insist upon a separate assessment of the value of his interest.

I have already pointed out the inconveniences that would follow from such a construction. It is obvious that the rational course in such a case, if there are more claimants than one, would be to consolidate the actions, and to give the carriage of the consolidated action to one or more of them. It is said that the Rules of the Supreme Court of New South Wales do not provide for such a course; but that fact, if it be one, cannot affect the construction of the Act, nor can I entertain any doubt that the powers conferred upon the Court by the Act, and which it is therefore required to exercise, include an implied power to make all such orders as are necessary for its efficient execution, whether by general rule of Court or special order in any par- ticular case,

In my opinion the difficulty is solved and effect is given to all the provisions of the Act by construing the words ' or of the estate or interest of the claimant therein" as referring to cases in which the claimant has an estate or interest, such as a lease of part of the land or an easement over it, the value of which is quite independent of the value of the land itself.

To sum up, I am of opinion that the only question with which the resuming authority is concerned under the Act is the value of the physical object taken, that that value, in the absence of agreement, is to be ascertained once for all, by arbitration in the case of resumption by notice to treat, and by a jury in the case of resumption by notification, that the distribution of the amount awarded or assessed by the jury, SO far as not specifically pro- vided for, is left to the ordinary modes for settling conflicting claims between parties, that any person interested in the land is entitled to be heard on the assessment, and that the Court is both

19 CLR 191

authorized and bound to make any such order as may be neces- sary for that purpose.

I am, therefore, of opinion that the appellants in the second and third appeals are not entitled to require separate valuations to be made of their separate interests.

With regard to the first appeal the respondent has already made the valuation demanded, but it is conceded that the request should have been for two separate valuations, one of the property to which the appellants in the second and third appeals are entitled for successive estates, and the other for the remainder of the property. I understand that he is willing to make such a valuation now, if SO requested.

In my opinion the appeals should be dismissed.

BARTON J. I have had the advantage of reading the judgment of the Chief Justice, and I concur in it.

ISAACS J. read the following judgment:-The respective rights and duties of the parties in a case of this nature depend entirely on the terms of the Statute of 1912. The case of Williams Permanent Trustee Co. of New South Wales Ltd. 1 decides that it is not necessary or proper to resort to, or consider, the earlier legislation on the subject"; that is, of course, for the purpose of learning the legislative will, there being no contest as to the meaning of any of the statutory terms.

One question is whether the tenant for life and the remainder- man are severally entitled to make independent claims for com- pensation. It is contended for the Minister that such a right can never exist where, as here, the whole undivided dominion of the land is taken at a stroke. The view presented is that the trustee

-if he has the power of sale-or, in a case like the present, the executor, who under sec. 44 of the Wills, Probate and Adminis- tration Act 1898 has the legal estate, and has a power of sale, even though it is "for purposes of administration" (sec. 46), must always make the claim and get the compensation settled. Cullen C.J. and Sly J. are opposed to SO sweeping a rule. The argument in support of the contention is that from the nature of the case it

1(1906) A.C., 249, at p. 252. 19 CLR 192

A. must be SO. That is to say, a tenant for life cannot ride off with a 1914.

separate portion of the capital, and therefore it is said it would be inconsistent to attempt to assess in his favour a lump sum of com- pensation. I fail to follow that argument. Granting that the interest of the tenant for life in the trust property does not extend to the permanent annexation of corpus, yet his interest such as it is has a money value. The circumstances that he cannot share the corpus affects and lessens the value of his interest, but when the true value of his interest such as it is has been reduced to the amount it would fetch, whether by private sale or statutory arbitration, that amount is his, and does not represent any por- tion of the corpus. The interest of the remainderman is com- putable in like manner, and is worth SO much the more that the tenant for life is unable to touch corpus. The two values added together make up the money value of the fee simple, and there is no double valuation of any portion of the property taken.

Inherently, therefore, there is no reason for denying the right, if the primary construction of the Act declares it. To ascertain that, we must turn to the relevant sections. Sec. 39 declares that land may be "taken" either under Division 1 of Part v. or under Division 2 of the same Part. And compensation for such land shall be ascertained and dealt with in all respects pursuant to the provisions of the Act "applicable in either case respectively." In other words, the respective methods of acquisition entail respec- tive methods of ascertaining and dealing with compensation.

Division 1, under which this land was taken, is a method not found in the English Acts. It either "appropriates" Crown land, or it "resumes" private property, which once was Crown land. From early times in Australia certain powers of resumption were inserted in Crown grants, but this enactment places the power on a broad statutory footing, and regulates its exercise. In a sense it is compulsory purchase (Williams v. Permanent Trustee Co. of New South Wales Ltd. 1 ), but it is a special mode of acquisition, carrying its own consequences. It is confined to the acquisition of the fee simple (sec. 43), that is to say, SO much of the complete ownership as the Crown has not already got. The land as physical substance is needed for some public purpose

1(1906) A.C., 249. 19 CLR 193

which requires complete ownership, and SO all individual rights whatever cease.

By sec. 45 1 the estate and interest of every person entitled to land resumed, or any portion thereof, passes to the Crown by force of the Act, as if they had been conveyed by the persons legally or equitably entitled thereto" by means of the most perfect assurance known to the law. If, therefore, an area of territory consisting of several tenements, owned respectively by

A, B and C, and in C's case as trustee for others, is resumed, all legal and equitable interests in the whole area pass. The second sub-section of sec. 45 declares that " every such estate and interest " is "converted into a claim for compensation" (see Starr v. London Corporation (1) ). I attach importance to that word "converted." It is an express conversion of a right to realty into a right to a money compensation which represents it, and which by sub-sec. 3 the person is entitled to get on two conditions. Those conditions are: (a) assertion of claim as pro- vided, and (b) making out "his title in respect of any portion of the resumed lands." Those last-mentioned words do not con- clusively militate against the appellants' view. Sec. 47, dealing with notice to treat, which admittedly includes equitable interests, refers in sub-sec. 2 to "an abstract of their title to such lands," which is stronger. Unless something else can be found in the Act cutting down the natural effect of those provisions, I can see no reason for denying the right of everyone whose property- whatever his estate or interest might be, legal or equitable- - was taken forcibly from him to get its worth in cash value from the Government. "Claim" for compensation means a claim against the Government. What, then, is there found against it ?

When we turn to Part VII., Division 1, beginning with sec. 101 we find the provisions for getting at the compensation. The claimant must set out in a notice in writing (sec. 102 (a) "the nature of the estate or interest of the claimant in such land," and the Sixth Schedule is referred to. Singularly enough, the Sixth Schedule in its first column, requiring names and descriptions of parties claiming, gives "tenants for life" as an example of "their interests." Sec. 103, under which the question before us directly

1L.R. 7 Eq., 236. 19 CLR 194

arises, requires the Constructing Authority to "cause a valuation of the land, or of the estate or interest of the claimant therein' to be made, and the claimant is to be informed.

So far from weakening the prima facie meaning of the earlier part, these later sections emphasize it. Up to this point the WORKS,

claim, and consequently the valuation, may cover the whole fee simple or any less interest, according to what the claimant's interest was.

As against that, reliance was placed on a group of sections contained in Part VI., namely, secs. 51 to 55 inclusive. It was said very truly by Mr. Knox that Williams v. Permanent Trustee Co. of New South Wales Ltd. 1 decided that the heading of the Part is important. He argued from that, that sec. 54 is general and applies to land "taken," whether under Division 1 or Division 2. If it can be applied to a case arising under Division 1 it should be SO applied. But whether it can be SO applied depends on its own terms, and the circumstances to which it is sought to be applied. Its terms, SO far as material, apply where land or any interest therein is purchased or "taken from" a tenant for life or certain others " not entitled to sell or convey the same except under the provisions of this Act." What is the meaning of "taking land from" a tenant for life in that connec- tion ? For that, we first turn to sec. 47. That gives power to give notice of the lands taken either to all parties interested in such land" or " to the parties enabled by this Act to sell and convey or release the same." Then the parties SO notified are required to deliver particulars of their " estate and interest," and their claims.

The Fifth Schedule shows the form of claim, which may be used either for the full fee simple, or (as is shown by the fourth description of claimant at foot, viz.: " I have a leasehold interest for

years ") for a limited interest. Then sec. 49 requires the person notified to (a) treat and (b) agree either for the interest in such lands belonging to such party, or which he is by this Act enabled to sell," otherwise the disputed compensation procedure applies.

This shows that a notice to a tenant for life may be for his

1(1906) A.C., 249. 19 CLR 195

own interest only, in which case sec. 54 would not apply to him, even in a case of acquisition under Division 2, because the fee simple of the land would not be "taken from" him. It might be taken from the trustee or vice versa. An instance of this dis- tinction is found in In re Pigott and Great Western Railway Co. 1. See also Kelland v. Fulford 2 and Stone v. Yeovil Corporation 3. Where, however, the whole fee simple is " taken from " a tenant for life, the money represents the whole land, and is substituted for it: Askew v. Woodhead 4.

In my opinion, sec. 54 cannot be called in aid in this case. The notification was for the whole of Block 35. Even if sec. 54 could have application to a notification under Division 1, a point

I leave open, none of the parties ever proceeded on the basis that it was to be applied. The Crown clung to the entirety of Block 35. The appellants partly recognized that entirety, and only departed from it to insist on their own individual interests. The middle course of the tenant for life dealing with the whole fee of Livingstone House as a separate property, was not suggested by anyone, and the tenant for life could not do more. The trustees as such were ignored. The principle of Abrahams v. London Corporation 5 and Starr v. London Corporation 6 there- fore applies, unless there is something to qualify it. And SO far

I see nothing to qualify it. There is no constructive re-conver- sion, as Sir George Jessel termed it in Kelland v. Fulford 7; no undoing of the express statutory conversion worked by sec. 45.

I think, therefore, the two separate claims-of tenant for life and remainderman--supposing they were the only ones made, could be insisted on.

A third claim, however, was made by the very same persons and another, the three being the executors. And this gives rise to the question of how far it affects the other two.

This third claim was in respect of the whole block. I do not think estoppel in the ordinary sense arises. For instance, if that claim had been withdrawn as an error before it was acted on, and the two others insisted on, I do not think it would have

118 Ch. D., 146, at p. 149. 26 Ch. D., 491, at p. 494. 32 C.P.D., 99, at p. 118. 414 Ch. D., 27. 5L.R. 6 Eq., 625. 6L.R. 7 Eq., 236. 76 Ch. D., 491. 19 CLR 196

made any difference whatever. The statutory duty of the

Constructing Authority could not be released by a slip. (See R. v. East London Railway Co. 1 ).

But the combined claim was not withdrawn. It was made necessarily with the individual authority of the separate claimants, because they WORKS,

made it themselves. Regarding it not as estoppel, but as a valid claim by the legal owners of the land, acting in that regard with the full and deliberate authority of the equitable owners, and therefore in protection and enforcement of their interests, it was such a claim as is contemplated by sec. 45. Legal estates are certainly as much converted into claims for compensation as equitable, and it cannot be doubted that, under the executors' claim, in this case the full value of the whole property including every equitable interest in it was intended to be stated, and in case of disagreement to be enforced. In response to that claim, on the face of it made under sec. 102, the Constructing Authority did cause a valuation of the "land," the value of which was claimed in its entirety, to be made and notified to the claimants. The addition of the names of the equitable owners and the trus- tees was surplusage, which does not hurt. But the combined claim of the executors, when met with a valuation which it demanded, was not surplusage. The condition of sec. 103 was satisfied, for I do not think it requires more than one claim to be answered SO long as that claim stands and is insisted upon. In other words, I do not think a claimant can by putting in various and divergent claims require valuations to each and every of them. The executors' claim, SO far from being abandoned, is still insisted upon. The claim for mandamus as to that is answered by the fact that the Constructing Authority has performed its statutory duty with regard to that particular claim. And as the interests of the individual claimants are with their consent fully represented by that claim, they are not entitled to a mandamus to compel a further valuation on a different claim, which would certainly give rise to an embarrassing, complicated, expensive and perhaps contradictory position.

From the reasons I have independently stated, it will be seen

117 L.T. (N.S.), 291. 19 CLR 197" text-full="19 CLR 197" text-short="19 CLR 197">19 CLR 197

I am practically in accord with the views of Cullen C.J. and Sly J., and agree that these appeals should be dismissed.

I would add that the offer voluntarily made to proceed to separate assessment in respect of the Livingstone House property and the residue property was very fair.

Appeals dismissed with costs. Solicitors, for the appellants, Bradley &Son. Solicitor, for the respondent, J. v. Tillett, Crown Solicitor for New South Wales.

mar COURT OF AUSTRALIA.] BARRY

HEIDER AND ANOTHER

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Land-Transfer obtained by fraud-Transfer not registered-Equitable interest

created by transferee-Mortgage-Rights of mortgagee - Caveat - Right of solicitor to withdraw --Attestation of instruments - Proof of instruments- Attestation by solicitor-Real Property Act 1900 (N.S. W.) (No. 25 of 1900), secs. 2 (4), 41, 72, 107, 108.* * The Real Property Act 1900 pro-

with the provisions of this Act, hereby repealed so far as regards their appli- Sec. 2 (4) All laws, Statutes,

cation to land under the provisions of Acts, ordinances, rules, regulations,

this Act, or the bringing of land under and practice whatsoever relating to

the operation of this Act." freehold and other interests in land

Sec. 41 (1) No instrument, until and operative on the first day of Janu-

registered in manner hereinbefore pre- ary one thousand eight hundred and

scribed, shall be effectual to pass any sixty-three are, so far as inconsistent

estate or interest in any land under