TIMBER LAND

Poverty Bay Herald, Volume LV, Issue 17227, 5 April 1930, Page 18

TIMBER LAND

DR. RAYNER'S CLAIM CKOWN'S POWER TO PURCHASE DECISION RESERVED. Arguments to establish the statutory power of the Commissioner of State Forests to purchase land, of any size and clothed with forest, for the purpose of a State forest, were concluded in the Court of Appel in Wellington on Thursday on behalf of Frederick John Rayner, dental surgeon, of Auckland, who claimed £35,000 from the Crown as money allegedly clue under an agreement for the pureiuuse of 5140 acres of standing timber. On the Bench were Mr. Justice Jlerdliiiui, Mr. Justice Reed, Mr. Justice Adams, Mr. Justice Ostler, and Mr. ; Justice Smith. Mr. A. Cray, K.C., with j him Mr. 11. .1. V. James, appeared t'oi suppliant. Mr. A. Fair, K.C., Solicitor - General, with lnni Mr. A. E C'urrie. rejirtftente.fi the Crown. MINISTER A TRt'STKK. In making further submissions to the Court, Mr. Fair said firstly that the payment to be made was for a mere i optional right to purchase, and a pre- ' liminary payment of that kind was not authorised by. Section 22 of the Forests Act : it was not tin acquisition of land | within the meaning ol that section. | Secondly, the payment was made to give I the purchaser time to make up his mind. Apart from the provisions of "tin 1 Public Revenues Act and the constitutional position, the Minister was in the position j of a trustee and could not enter into a I contract involving large future payments unless the money was available at the time—in other words, the only power was to carry out a cash transaction, not one spread over five or six. months, a.s was intended in the present, case. Further, it was not lawful for the Crown to enter into a contract extending over the financial year without special statutory | authority. I Mr. Currie also addressed the Bench i at length POWER NOT LIMITED. Mr. Cray, in presenting arguments for suppliant, said he would not like the Court to lose sight of the fact that primarily the money agreed to be paid was for "the option, to be credited as part of the purchase money- In regard to the contention of opposing counsel that the agreement to purchase was not authorised by the Forest Act, the case for suppliant I relied upon section 22 of the Act. where ' it was provided the Minister might purchase or otherwise acquire any land for i the purpose of perma.nent State forests or provisional State forests, or for the purpose of providing access. It hud been contended by the Crown that the power was limited to comparatively small purchases, hut counsel suggested in that I regard that the words in the section I were perfectly general and wide and contained an authority to the. Minister tn purchase any land deemed as a matter of policy suitable for State forests, and not merely land to add to an exjsting forest. The State Forest'Service was a board which had control of all matters of ft rest policy. It was surely in exercise of policy t hat the Minister entered into agreement lo acquire the land 'concerned in the present case. In sub. section 2 of section .22 it was provided that in addition to his power of parchase or acquisition by some other means, the Minister might take land under the Public Works Act a.s for a public work whbli in his opinion was required for the purpose of a State forest. A power to buy land neeessaiily included power to buy standing timber. As soon as land was' purchased for the purpose of a State forest it would become Crown hind at once, and if a permanent State forest it could not be disposed of without Parliamentary sanction. CM LIGATION TO PAY. During the last few years Parliament had authorised the appropriation of not less than £1,500,0C0 for the acquisition of land and in connection with the establishment of State forests. Mr. Gray made the submission that to enter into a contract implied an obligation to pay. One could not buy without payment, li a person entered into a contract to buy land or anything else, there was necessarily an obligation to pay the price asked. If would be conceded the cases showed thai to bind the Crown it must be proved either that the contract not authorised had been ratified by appropriation of public money for the purpose. Admittedly there was the absence of a certificate by the permanent head of the department to enable the money to be paid out of unauthorised expenditure, 'but that, no more than the absence of any appropriation, did not conclude the matter. Tn the absence of an appropriation, a. person contracting with the Crown was not in a worse position than a person who had a judgment under the Crown Suits Act. because even in the latter case there could be no payment until after appropriation bv Parliament. It was submitted by Mr. Gray that if a contract were authorised by Parliament, that was sufficient to bind the Crown. Mr. Justice Herdman : It may be that a. Minister has power to purchase, but is that, enough? Mr. Gray contended that it was. Mr. Justice Smith: To enable you to co to judgment ? Mr. Gray: Yes. iSomo of the authorities, said Mr. Justice Herdman, seemed to go to the length of stating that if" Hie money had not been appropriated by Parliament, there was no contract. QUESTION OF APPROPRIATION. To this Mr. Gray replied that very often contracts were made on behalf of the Crown, in anticipation of Parliament voting the amount, required. That, remarked Mr. Fair, was merely an exceptional case. It was irregular and was not done where it could possibly bo avoided. It was done much more freely by the Australian States than by uk. Mr. Gray: If the court were to hold that there must be prior appropriation tn every case there would be very few I contracts. 1 Mr. Justice Reed : You could have lan appropriation of. say, £IOO,OOO appropriated generally for forest purposes. Then it would be a prior nppropriaI ion. Mr. Gray replied that- that miirht or might not cover it. Even then, if Parliament voted a !an.re sum, as suggested, it did not follow (hat Parliament nii'.'hf; approve of the particular purchase. Even if the present contract bad been carried out and there had been during j the vear it was entered into a vote of j a larye sum without specifying anv particular purchase, if would surely b" open to Parliament to question the

pnrchii.se. Admittedly, the suppliant was dependent for payment on an .appropriation. There would be judgment for what it was worth, and, added Mr. Gray, that was not putting a strained interpretation on the Act, because every successful litigant under the Crown Suits Act was in the same position. Air. Justice Reed: Even assuming that here is power for the Minister to purchase land, is there power to pay £35.030 for an option? BY WHAT AUTHORITY? Mr. Gray said that Mr. Fair had contended that the sum mentioned as being- for an option was really an instalment of the purchase money. The agreement was for an option, and a very large sum had been agreed to be paid for the right to take the land. The court, in counsel's opinion, was not concerned with the amount of the consideration if the contract was otherwise valid. It would appear that the purchase had been under consideration for some considerable time, and arrangements were concluded by this method of the Minister taking an option. The agreement appeared to have been made solemnly, and, presumably, with the sanction of the Government of the day. It had been suggested, continued counsel, that the Minister had no power to take the option. His own opinion was that if a person had authority to make a purchase, lie had authority to take an option rather than bind himself immediately to the deal. Mr. Justice Herdman said that there was no authority in the Act to bind the Crown to pay £35,000 for an option, Mr. Gray replying! that he would suggest that since the Minister was authorised to purchase ho was also authorised to take any preliminary steps. Mr. Justice Osier: He is authorised to give any money for land and not for a mere option to purchase land. Mr. Ciray: By taking an option the Minister acquired) an interest, in the land, and the Act authorised him to purchase or otherwise acquire. POSITION OF TITLE. Reference was made by Mr. Justice Ostler to the contention by Mr. Currie that if there was a blot "on the title, the suppliant could not recover the price agreed upon for the option, because there had been a failure to give the consideration specified. His Honor stated that if a private person agreed to buy 1 hind on an open contract, and then found that it was subject to part 13 of the Land Act, he could repudiate the contract, because there was a blot on the title, and the land could be sold to only a limited class. Mr. James also addressed the court, and the Solicitor-General replied. The court reserved its decision.