F.C.

COLLINS v.
THE KING.

O'SULLIVAN D.C.J.: This is an appeal from the Land Court's determination of the rent payable for Palma Holding, in the Leichhardt district, during the second period of the lease which commenced on 1st July, 1915.

By an instrument executed on 11th August, 1919, and which purported to take effect as from 1st February, 1920, the entire holding was surrendered in satisfaction of all Crown rights of resumption under s. 146 of The Land Act of 1910 in respect of Palma and Gwambagwine Holdings, and in consideration of the opening for lease on conditions agreed upon of the original resumed part of Gwambagwine then comprised in O.L. 74, Taroom district.

The conditions referred to provided that the appellant lessee was to have priority of application for the resumed part of Gwambagwine when opened for pastoral lease, and that the rent of the new holding was to be provisionally stated at 21s. 6d. per square mile per annum, but that the rent to be determined later by the Land Court for the second period of the lease of Gwambagwine proper was to be the rent for the whole of the first period of the lease of the new holding to be created out of the original resumed part of Gwambagwine.

It does not appear that there was any stipulation in regard to the determisation of the rent of Palma Holding for the second period of the lease or for the part of the second period as the lease which would have expired when the surrender took effect, but there was an understanding that the surrendered holding was to remain in the occupation of the lessee under an occupation license tenure until the land was selected.

Prior to the surrender, the Minister had, in accordance with s. 29 of The Land Act of 1910, furnished the Court with a report and a valuation by Assessing Commissioner Carr, dated 15th May, 1919, in which the fair rental value of Palma Holding during the second period of the lease was stated to be 52s. per square mile per annum. In a letter dated 6th August, 1919, written in reply to the Court's requisition for a valuation, the lessees' representative had stated that it was "considered there should be no increase for the second period of the rent fixed for the first period of the leases" (Palma and Gwambagwine).

The matter of the determination of the rent payable for Palma Holding during the second period of the lease was originally set down for hearing at Dalby on 5th December, 1919-that is,

before the date on which the surrender was to take effect, but was adjourned on the application of the lessee. The matter was heard at Dalby on 15th March, 1921, after the surrender took effect, and at Brisbane on 23rd March, 1921, the Land Court determined the rent payable for the second period at 33s. 9d. per square mile per annum. The present appeal is by the late lessee from that decision.

Mr. Graham, on behalf of the lessee, objected to the whole assessment in the Court below, on the ground that the lease had, prior to such assessment, been surrendered, and the right of the Crown to all rent not then payable was lost. It was admitted that the Crown was entitled to any rent that had accrued due and was payable at the date of surrender, but he contended that rent accruing as the result of a determination made on 23rd March, 1921, could not be held to be due prior to the surrender. Rent does not accrue from day to day, but only when it becomes due, and 'due" means immediately payable. The Crown could not have sued for this rent. The law in Queensland is in that respect the same as it was in England prior to the passing of the Apportionment Act.

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He cited the following-Fenner v. Blake (1), Woodfall on Landlord and Tenant, 17th Ed., p. 342; Grimman v. Legge (2), Foa on Landlord and Tenant, 4th Ed., p. 165; Redman on Landlord and Tenant, 6th Ed., p. 522; Attorney-General v. Cox (3), Encyclopedia of Laws, Vol. 13, p. 736; Halsbury, Vol. 18, p. 552; Slack v. Sharpe (4), Ex parte Kemp, In re Fastnedge (5), Irish Land Commission v. Massereene (6), Re Lucas, Parish v. Hudson (7), In re European Life Assurance Society (8), Dibble v. Bowater (9).

Mr. Martin, for the Crown, contended that under s. 128 rent, at the increased rate determined in the Court below, is payable from the commencement of the second period of the lease, up to the date when the surrender took effect. All rent payable under the lease was due annually During the second period the liability was for an annual amount to be fixed by the Court. The surrender did not affect that liability.

He did not contend that the 1920 Act applies to this holding

(1) [1900] 1 Q.B. 426.

(2) 1828, 8 B. & C. 324.

(3) 1850, 3 H.L.C. 240.

(4) 1838, 8 Ad. & El. 366.

(5) 1874, L.R. 9 Ch. 383 at p. 387,

(6) 1904, 2 Ir. R. 502 at p. 513.

(7) 1855, 55 L.J. Ch. 101.

(8) 1869, 39 L.J. Ch. 324.

(9) 1835, 2 E. & B. 564,

F.C.

COLLINS

THE KING.

F.C.

COLLINS v.
THE KING.

We think it is properly conceded that the Amendment Act of 1920 does not apply, the lease having been surrendered before that Act came into operation. The effect of the surrender was that the lease ceased to exist, and that the lessees' liability for rent due under the lease, whatever that liability then was, remained. We do not think that that liability was affected by the Act of 1920, the retrospective effect of which does not extend to leases which had ceased to exist before the Act came into operation. See Lauri v. Renad (1). It follows that the Court below was right in limiting the increase of rent to 50 per cent. of the annual rent for the first period, in accordance with s. 43.

This leaves for decision the important point raised by Mr. Graham as to the power of the Land Court to determine the annual rent for the second period, the lease having been surrendered by mutual agreement before the Land Court made its determination.

On this point there is a difference of opinion, Mr. Shannon dissenting from the view of the majority.

We adopt the general principle for ascertaining the lessees' liability on the surrender of a lease, as laid down in Woodfall on Landlord and Tenant, 19th Ed., p. 357: "Where a lease containing a personal covenant for the payment of rent is surrendered, the personal covenant is independent of the estate in the property, and as to rent previously due, is not affected by the surrender."

We think that the statutory condition imposed on the lessee by s. 43 to pay an annual rent for the second period, such rent to be determined by the Land Court, has the same effect as a personal covenant to pay for the second period annual instalments of rent on 30th September in each year-s. 127. Each annual instalment was a separate liability, subject to the amount being determined by the Land Court, and was "due," though the amount was not ascertained. The word "due" may mean a debt contracted, but payable in futuro. Irish Land Commission v. Massarene (2). Or it may mean "presently payable." Owing or a sum due regarded as a debt without reference to the time of payment-per Griffith C.J., David v. Malouf (3).

(1) [1892] 3 Ch. 402.

(2) 1904, 2 Ir. R. 502 at p, 512.

(3) 1908, 5 C.L.R. 749, at p. 753.

We think no difficulty would arise on the construction of s. 43 by itself. The "annual rent at the rate for the time being prescribed" for the second period would clearly mean the rent to be determined by the Court.

Section 43 (i.) has no retrospective operation. It was made retrospective by s. 128, and the words used for this purpose arewhen the amount of rent is determined by the Court the lessee shall pay any arrears of rent found due by him, so as to adjust the balance due to the Crown

If s. 128 consisted of these words only, no difficulty of construction would arise. The second period rent would be at the rate "prescribed" by s. 43, and the determination of the Land Court would operate nunc pro tunc os if it had been made before the first annual instalment of the second period had become payable. able. But the Legislature decided to go further than merely making s. 43 (ii.) retrospective. It decided to make provision, pending the determination by the Land Court, for the payment by the lessee of "the same amount of annual rent as theretofore." It is the combination of this provision, with the retrospective provision in s. 128, which has caused the difficulty in construction of the two sections.

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We do not think s. 128 prescribes any rate of rent within the meaning of s. 43. If it does, then two rates are "prescribed " for the same holding over the same annual periods, assuming that s. 43 (i.) is made retrospective by s. 128. We think the rent payable under s. 128 is not rent at the rate "prescribed " by s. 43. It is an interim annual payment, until the rent to be determined by the Court has been determined under s. 43 (ii.). The interim annual payments are then to be taken into account on the basis of the rent so determined, having been the rent prescribed by s. 43 since the commencement of the second period, or third period, as the case may be.

We think s. 43 and that part of s. 128 making s. 43 (ii.) retrospective, should be construed as if the provision for interim annual payments had not been included in s. 128.

The matter of the determination of the rent for this holding was set down for hearing on 5th December, 1919, a date before the surrender took effect. If it had been determined, then there can be no doubt of the lessee's liability for the rent so determined for the second period. The hearing was adjourned till 15th March, 1921, a date subsequent to the surrender taking

F.C.

COLLINS v.

THE KING.

F.C.

COLLINS v. THE KING.

effect. It would be strange if the accidental delay in the Land Court's determination should have resulted in the lessee's liability being the rate fixed by s. 128, instead of that contemplated by s. 43.

It is contended that our construction of ss. 43 and 128 will raise difficulties as to the construction of some other sections, under which a lease may be terminated during the currency of a period for which the rent has not been determined. Under s. 122 the tenant may terminate the lease by surrender at any time on certain conditions; under ss. 129 and 130 the Crown may terminate by forfeiture, and under s. 145 by resumption. We think our construction is more equitable as between the Crown and the lessee, and that less difficulties will probably arise in operating the sections referred to than if the alternative construction is adopted.

The appeal is dismissed, and the decision of the Land Court is affirmed.

The following judgment was read in the Land Appeal Court by

MR. SHANNON: The question for decision is, shortly, whether in the circumstances stated in the judgment of the majority of the Court, the Land Court was right in law in determining the rent of Palma Holding for the second period of the lease thereof. Practically the question raised is whether the Land Court has the power and the duty of determining the rent of a holding for the second or any subsequent period of the lease if after that period has partially expired, the lease is surrendered without the rent for the period then current having been determined. The surrender in the present case was the result of a voluntary arrangement between the parties, but it must be borne in mind that there may be surrenders which are not matters of arrangement. An absolute right to surrender is given by s. 122 of The Land Act of 1910, which provides as follows :-" A lessee of any holding may at any time surrender his lease upon giving to the Minister one year's notice in writing of the intention to surrender, or paying one year's rent in advance in lieu of notice, and upon paying all money due to the Crown by way of rent or otherwise in respect of the holding up to the date of the surrender."

This greatly increases the importance of the question raised in the present case.

The determination of rent is a statutory duty imposed on the Land Court, but whether this duty arises in a particular