FOREST LAND

Hokitika Guardian, 27 May 1930, Page 7

FOREST LAND

AGREEMENT TO PURCHASE

ACTION AGAINST CROWN FAILS

WELLINGTON, May 2,

The judgment oil'the Court of Appeal in ltayner v. The King, was deliverer, this afternoon. It was prepared by M •Justice Adams, and delivered by Mr Justie Ostler. The result was in favour of the Crown. Mis Honour said that sub-section 21 (1) of the Forest Act, 1921-22, did not in express terms, authorise the Minister to contract for an option to purchase, and in was startling to find thal the contracting parties appeared to hat assumed that the power to purchase unvote lands vested in the Minister, in-

■aided by necessary implication t|ic power to contract for an irrevocable option, and to bind the Crown to payment of such consideration for the op turn as he might think fit. The Minister was in the same position as an ordinary agent, and the authority exercis ed by him must be within the term" of the statutory authority. When ttv Minister made a contract tinder th' Act, 1)6 contracted in his public capacity, mid subject to the particular restrictions which constitutional practice or the empowering statute imposed. LooW at from another point of view the Minister was trustee of the statut ory powers, and must keep within th' terms of those powers. If a trusce' with power to purchase land entered into such a contract, it would, in the absence of expressed power, be a hreac' of trust to pay for the option out r 1 the trust fund. The acquisition of ai Trevocable option was not a purchaser an acquisition of private lands, within subsection (a) of Section 38 of the Forests Acts, and that section therefore did not authorise the payment 'of money as a consideration fo such contract. The agreement alleg ed by suppliant was, therefore, ultra vires, and unenforcable, and the peti Hon might be disposed of on tha J groun alone.

The contract to pay if valid was subject to the condition that the titles Humid be in order. It was admitted that the lands affected hv the agreement, were subject to Part 15 of tin Land Act, 1924, and Section 74 of the Native Land Amendment Act 1913, and that these restriction were noted on the certificates of title. The Court could not go behind the certificates or title or correct errors therein in the proceedings,' and if it cofild he done it was then too late. It was plain the Land Act, 1924, operated on lands alienated from the Crowtl no matter bow or wheii the lands Had been acquir ed by the Crown. If the Crown at any time should desire to soil the land, sible buyers would he excluded from purchasing with a probable result of a substantial reduction in the market value of the land.

Having arrived at the conclusions that the agreement relied oil by the suppliant was ultra vires of the M.’ ter, his Honour did not consider it necessary to enter on the other questions, whether the Minister had power of purchase under the Public "Works Act lands to be set aside as a public forest. He did not agree, however, that the nnropriation of public moneys was condition precedent to the exercise of the authorityvested in the Minister by Sub-section 1 of Section 22, of the Forest Act, 1921-22. Questions for answer by the Court were answered as follows:—•

(1) The agreement alleged in the •'efition is ultra vires of the Minister, and if otherwise valid, would he unenforceable for the defect of title.

(2) The lands being subject to tin restrictions mentioned, the agreement is unenforceable. The case was romif+cd to +1 '° c hin” r ""

Court to be dealt with. Costs on the higher scale were allowed to the Crown.

Mr Bray, counsel for suppliant, asked for conditional Iea TT o to appeal to the Privy Council, hut this was adjourned to the next sitting of the Court of Appeal.

Frederick John Rayner, an Auckland dental surgeon, in January, 1929, filed a petition of right under the Crown Suits Act against the Crown, alleging that, written agreement, dated October 11th, 1928, made with the Commissioner of State Forests, he agreed to give, and the Commissioner, acting on

behiflf of the Crown, agreed to take, an option to purchase forests of timber on certain freehold and leasehold - lands containing approximately 5140 acres, known as Tnuri-Takukau forests, at a consideration of £35,000 for an option and, in the event of the option being exercised, the price of the timber to be ascertained and paid in a manner provided in the agreement, credit being given for the consideration paid for the option. He further alleged that the sum of £35,030 was payable on October 11th, 1928. but had not yet been paid. Rayner asked right be done in the matter.

The Solicitor-General in turn filed a plea to this petition, denying the existence of any valid agreement and allege ■ per that, at the time of the negotiations between the suppliant and the <~Wmissionor. the former’s title to the lands in question was not in order; and that, even if it were proved that the agreement as alleged had been en'•nrpfl i'> 1 o if wn« l’PVOlld' 'the rmfnnrj tv of the Commissioner, and therefore not binding on the Crown.