Pastoral [IN THE FULL COURT.] COLLINS v. THE KING. Rent-Surrender after lease of lease-Surrender expiration of first period of lease-But before the rental for the second period had been determined-Occupation by lessee from date of commencement of first period to date surrendered— Rent paid at rates fixed for first period-Determination of rent for second period at higher rate-Jurisdiction of Land Court to make determination of rent for second period-The Land Act of 1910 (1 Geo. V., No. 15), ss. 42, 43, 122, 127, 128. The appellant was the lessee of Palma Pastoral Lease, and paid rent for the first period thereof at the rate stated in the Fourth Schedule to The Land Act of 1910. The first period expired on 1st July, 1915. The lessee continued in possession of the holding until the happening of the events subsequently mentioned, paying interim annual rent at the original rate under the provisions of s. 128 of The Land Act of 1910. The rental for the second period of ten years was not fixed by the Land Court until 23rd March, 1921, and it was then determined at a greater sum than was payable for the first period. In the meantime, the lessee had surrendered the Palma Lease. The instrument of surrender was dated 11th August, 1919, and thereby all the estate and interest of the lessee in the Palma Holding were surrendered to the Crown, to the intent that the residue of the term of the lease might be absolutely extinguished as from 1st February, 1920. Before the surrender had been executed, proceedings had been commenced for the determination by the Land Court of the rent for the second period of the lease. The hearing was fixed for December, 1919, but was adjourned and the rent was determined on 23rd March, 1921. Held, that the Land Court had jurisdiction to make a determination of the rent payable for the second period of the Palma Holding lease, irrespective of what might be the effect of such determination. Quare, whether the appellant was liable to pay rent at the increased rate fixed by the Land Court from the commencement of the second period to the date of surrender of the lease. SPECIAL CASE. This was a special case stated by the Land Appeal Court, in which the facts were as follows: The appellant was the lessee from the Crown of Palma Pastoral Holding. The lease was for a term of twenty years, commencing 1st July, 1905. The rent for the first period of ten years of the lease was 22s. 6d. per square mile, which is the rent stated against the holding in the third column of the Second Schedule to The 1921. December 9, 12. Real J. Shand J. F.C. COLLINS v. Land Act of 1910. The second period of ten years of the lease commenced on 1st July, 1915, but no determination of the rent to be charged during the second period was made by the Land Court prior to 23rd March, 1921. On 1st August, 1919, the lessee wrote to the Under Secretary for Lands as follows :— "Referring to my interview with you this morning relative to proposed resumptions from Palma and Gwambagwine Holdings, in the Leichhardt district, I have the honour to inform you that I am prepared to surrender the whole of Palma Holding in satisfaction of the full resumption rights from that holding end Gwambagwine Holding on condition that I am granted a pastoral holding of the area comprised in the original resumption of Gwambagwine now held as Occupation License No. 74 for a term equal to the unexpired term of the lease of Gwambagwine, and at the same rental as now paid on that holding. I will also undertake to clear the whole of the pear on the forest country on the said occupation license within a period of five years. Should the rent for the second period of Gwambagwine Holding be increased, I undertake to pay the same rental for the lease of Occupation License No. 74. ' To the letter the Under Secretary replied: "Referring to your letter of the 1st instant stating that you are prepared to surrender the whole of Palma Holding on the condition set out below, I am directed to inform you that the offer is approved and a fresh surrender of the holding with the necessary alterations, is forwarded here with for execution and return at your early convenience. "CONDITIONS. "(1) Palma Holding, on surrender, to be accepted by the Crown in satisfaction of all Crown's right of resumption under s. 146 of The Land Act of 1910 with respect to that holding and Gwambagwine Holding; the surrender to take effect on the 1st February, 1920. "(2) Occupation license No. 74, Taroom District, to be opened for lease under s. 40 of the Land Act (a) the term of lease to expire on the 30th June, 1939, when the lease of Gwambagwine expires; (b) the annual rent during the first ten years to be stated provisionally in the Gazette notice of the opening as 21s. 6d. per square mile being the present rent of Gwambagwine Holding; (c) on the rent of Gwambagwine being determined by the Land Court for the second period of the lease, such rent to become that of the lease of Occupation License No. 74 for the whole of the first period of ten years, and the lessee to at once pay any balance of rent thus shown to be due, (d) the pear on the forest country to be destroyed during the first five years, not less than one-tenth each six months, and the land to be to be kept free from pear thereafter; and (e) priority of application to be conceded to the lessees. "In anticipation of the lessees desiring to remain in occupation of Palma under an occupation license until the land is selected, I enclose a draft application for such a license under s. 46 of The Land Act of 1910. When returning this and the surrender duly completed, kindly let me have also the lease of the holding and a statement as to the name of the person or persons to whom it is desired priority of application in the opening for lease should be conceded. In regard to the last-mentioned point see my letter of the 31st July, 1918, to the late Mr. C. J. Collins On 6th and 27th August, 1919, the lessee wrote the two following letters : "I beg to acknowledge the receipt of your letter of 4th instant intimating the Department's approval of our offer to surrender Palma Holding on the condtions set out in your letter under reply, and forwarding for execution in that connection form of surrender and form of application for occupation license. "As the lease of Palma is in the name of Mrs. William Collins as administratrix, I am forwarding to her for completion the documents referred to. As soon as they are returned to me I shall forward them on to you together with the lease of Palma. "In connection with the opening for lease of the country at present comprised in O.L. No. 74 Taroom it is desired that priority of application should be conceded to the writer, whose full name is Douglas Martin Fraser." 66 Following my letter of 6th instant, I now send you herewith formal surrender of Palma Holding, and also an application for an occupation license of the lands comprised in that holding." The surrender referred to in the letters was duly executed, and was sent to the Under Secretary, and was as follows:Know all men by these presents that I Mary Adelaide Gwendoline Collins as administratrix being the registered lessee of the holding known as Palma in the Leichhardt District in 66 F.C. COLLINS v. THE KING. F.C. COLLINS v. the State of Queensland do hereby surrender assign transfer and yield up unto His Majesty King George the Fifth his heirs and successors all my estate and interest in and to the said holding together with all my rights and privileges of occupation which may belong or accrue to me as the holder of a lease of the said holding under the laws and regulations in force for the time being to the intent that the residue of the term of the lease of the said holding may be absolutely extinguished as from the 1st February, 1920. This surrender is executed on the understanding that the holding is to be accepted by the Crown in satisfaction of all rights of resumption under s. 146 of The Land Act of 1910 with respect to the holding and Gwambagwine Holding, and that Occupation License No. 74 Taroom District is to be opened for lease on the terms set out in letter from the Under Secretary for Lands to Mr. D. M. Fraser dated the 4th August 1919." After 1st February, 1920, the appellant, with the consent of the respondent, continued to occupy the lands mentioned in the said lease under an occupation license granted under s. 46 of the Land Act, and such occupation continued until after 13th June, 1920. Official notification, dated 29th October, 1919, was given to the appellant that the matter of the determination of the rent to be charged for Gwambagwine and Palma Holdings during the second period of the leases thereof would be brought before the Land Court at Dalby on 5th December, 1919, but was adjourned on the application of the appellant, and came on for hearing on 15th March, 1921, at Dalby. On 23rd March, 1921, the reserved decision of the said Court was delivered, whereby the Court (inter alia) purported to determine the rent to be charged for the second period of the lease of the said Palma. Holding at 33s. 9d. per square mile. The appellant had, from time to time during the second period, paid to the Crown, in accordance with the provisions of ss. 127 and 128 of The Land Act of 1910, the same amount of annual rent for the lease as was paid during the first period of such lease, including the amount of annual rent which was payable on or before 30th September, 1919, in respect of the year ending 30th June, 1920. The appellant appealed to the Land Court. On that appeal counsel for the appellant contended that on the evidence the lease of Palma Holding had been surrendered either by express Supplement to ueensland reporter, January 01, 1940. surrender on the execution of the document above set out, or by operation of law on 1st February, 1920, and that any rent for the second period other than rent already paid by the lessee as provided by s. 128 of The Land Act of 1910 at the rental fixed for the first period of the lease, was rent accruing due after such surrender, and had by reason of such surrender been sunk and entirely lost; that consequently there was no right in the Crown to receive any rent for such second period other than the rental already paid at the rate fixed for the first period, and that after the happening of such surrender, the Land Court and the Land Appeal Court had no power to fix or determine any rental for such second period. On behalf of the Crown, it was contended that the rent payable under the lease for the second period became due and accrued annually; that such rent had so accrued due prior to the date of the surrender; and that the fact that the actual amount or rate of such rental had not been determined prior to such surrender was immaterial. The Land Appeal Court (by a majority) decided that the appellant lessee was liable to pay to the respondent Crown rent for the second period of the lease of the said Palma Holding up to and including the annual instalment due on 30th September preceding the date of the surrender of the said lease at and after the rate of the annual rental determined by the decision of the Land Court. The appeal was therefore dismissed, and, on the application of the appellant, this special case was stated, in which the following questions were submitted to the Supreme Court : 1. Was the Land Appeal Court right in holding that the appellant was liable to pay rent in respect of the second period of the lease of Palma Holding, or for any, and what part of, such period at or after the rate fixed by the decision of the Land Court of 23rd March, 1921 ? 2. Had the Land Court jurisdiction to make the determination of the rent payable for the second period of the lease of the said Palma Holding made by the Land Court on 23rd March, 1921. 3. Was the Land Appeal Court right in dismissing the appeal to the Land Appeal Court? 4. How and by whom should the costs of this special case be paid? The judgment of O'Sullivan D.C.J. and Mr. Heeney in the Land Appeal Court was read by F.C. COLLINS v. THE KING. |