Friday, May 15. IN" BE MESSRS. MEE AND O'KANE.

Tuapeka Times, Volume VII, Issue 357, 20 May 1874, Page 3

Friday, May 15. IN" BE MESSRS. MEE AND O'KANE.

His Honor delivered judgment in this case as follows : —

The case states that on tho 4th August, 187u, the Messrs. Alee applied to have the laads described pat up to auction at the upset price o£ 10s. per ucro, ami thoy paid tho prupoi* <lipo-.it. Tbo o<Ud lIIUCIS Were such as might have b^en put up to auction, but the sanction ol Sue SupcvintondenD and Provincial Council, as required by the statute, was not obtaiued to offer the said landi for sale. The lands were consequently not offered for sale, and nothing furl her was done in jespect of tae application of Messrs. Mcc ; and the said section: were then advertised as "opeu for selection and rale.'' The Gazette notice, dated the oth of August, desciitei all the sections of land therein mentioned as "surveyed rural land in Otago, open tor selection." On tue 22nd day of August, Mr. O'Kane m.ide applicat:on in vhe proper form tp purchase the bame lands at the :>rice of 2./ S. per acre, and ho paid the proper deposit. The case then states that, within six days after the application of Samuel O'Kane had been received at the Laud Otttce, in Dunediu, the Board resolved, "' That the Board aok the Superintendent to withdraw the land, with a view to its being opened to public competition ; and that the application — i.e., of O'Kane— be refused." There was no other applicant for the said land on the same day ; the sections had not been previously reserved or withdrawn ; nor had tl?e Bo.ud obtained the consent of the Superintendent to reserve or withdraw the same ; nor was there any evidence to show that the land was required for any public purpose, or that the sale would be prejudicial to the public ; but the Board cors : dered thai it would be so prejudicial, one member observing that it would bs unjust to Messrs. Mcc to grant the application or Mr. O'Kane, and the said Board accordingly resolved to ask the Superintendent to withdraw the land from sale, in order that it might be sold oy public auction. In the first place, I am o£ opinion that the application of Messrs. Mcc was at an end. It was not granted, and the necessary consent or sanction oE the Superintendent and Provincial Council was not obtained. Then came the 6u~ette notice or the Oth August, already )".'fe to. This was a clear notice to .ill tho world that Uip \nxul* would not be pit up for sale by auction at the price o£ l\fc. p<sr acie, but were •' surveyed rural lands of Otigo. open for selewon " at the price of 20s. per aTC. I cannot discover that a"iy injustice wis done to Messrs. Mcc by this proceeding. They had made au application which may be construed as an otiVfor the land upon certain terms and conditions, which were not accepted; and vhe Gazette nocice of the sth August was a notice to them and to all the world that the lands described wore open for selection on other terms, and they had the samu opportunity oL making an application to select the same lauds at 20s. per acre that Samuel O'Kane had. Seventeen days wrre thin suffered by Messrs. Mcc to pa. s by without any application being made by them in accordance with the noLL-c of the Oth of August. Ac the end of that time, namely, on the 22nd of August, Samuel O'Kane made his .ipplidtion, and he had then no competitor. The question then is, whether it was competent for the Board to fall back upon Messrs. Mee's application, and apply to the Superintendent to Rire tho Board his sanction to withdraw the said lauds from sale, and I am of opinion that it was not. A new right had arisen, and it was too late. Mr. Cook suggested that O' Kane's application was no more than an offer for the lavid, and thav, until that offer was accepted by the Board, there was nothing in the nature oE a contract. But it seems to me that the oiler is no; tie application of O'Kaue, but the public notice oE the Government. This notice virtually says these lauds are oijeu for selection by the first applicant, so that the application is more analogous to the acceptance of the offer of Ihe Governmeuu than to a first offer. I do not mean t'lat it is a contract capable of being sued upon, but rather an e-igagemeuii which the Government oiifht to carry out, except for some reason to be sought for in the statute. The case states tbat there had been no previous withdrawal, but only a refusal by the Board, in order to give time to npply to the to sanction a withdrawal. Jfor this the statute does not provide, and any withdrawal, or what may bo deemed equivalent to withdrawal, by the Board, is invalid, by the Ssth section, for want of the consent there required; and even then it must be prejudicial to the public interest that any sale should take pl:ice ; which is expressly negatived in this case, and the very words of the resolution, '• with a view to its being open to public competition," imply that a sale would not be prejudicial, &c., within the meaning of the 3jthsscction. No other section of the Act interferes with the applicant's claim. Section ;i6 was referred to as showing that the Board has a discretion to refuse. I was also referred to sections 81, 82, and 83. These merely regulate the price and mode of sale in tho several cases provided for. Section 86 would have secured the application of Messrs. Mcc, if the sanction there mentioned bad been obtained. I am, therefore, of opinion that the withdrawal of the lands after Mr. O'Kane's application was too late, that the refusal of the Board was not warranted by any provisions in the statute of 1872, and that he is consequently entitled to complete his purchase. Appeal allowed.