NORTH AUSTRALIAN COMPANY V. BLACKMORE (NOMINAL DEFENDANT). NORTHERN TERRITORY ACTS, 1863, 1868. - Regulations Applications for land - Land Orders · Contract-Company- By regulations made under Northern Territory Act, 1863, the officers On the 29th March, certain persons as directors and promoters, on behalf of a company not then in existence, forwarded a letter with £8,000 “for the purchase of lands—town and country lots—in the Northern Territory of South Australia, the demands of private individuals to be satisfied before the allotment of any lands on this application." The contemplated company was afterwards incorporated, and the Government then allotted to the Company certain sections pursuant to the above application, and issued land orders in respect thereof. The Northern Territory Act provided that the holders of land orders should, within five years, select, out of land surveyed by the Government, the land required by themselves. Such selection, however, was prevented by the Government not having surveyed within the prescribed time. The Northern Territory Amendment Act, 1868, extended the time for selection, but rendered it impossible for the Government to fulfil their original contract. The Company then sued the Government under the Claimants' Relief Act, their declaration containing a special count for non-performance of the contract, and the common count for money had and received. The defendants contended that the land orders were not issued in conformity with the regulations, by reason that the persons to whom the orders were issued were not the persons mentioned in the application; that the application was not in the form required by the regulations in not applying for a specific quantity of land; also, that the contract being made by the Government of South Australia in the carrying out of a public undertaking, did not confer rights on the plaintiffs capable of being enforced at law; and that the Northern Territory Amendment Act, 1868, operated as a repeal of the Act of 1863, and therefore altered the contract and deprived the Company of its right of action. Held-First-That under the regulations it was lawful for the Government to issue the land orders to the transferee of the original applicant, and that there is no authority for saying that a Company SUPREME COURT. NORTH AUSTRALIAN COMPANY COMMON LAW. cannot carry out and complete negotiations previously entered into on its behalf before its formation, and make them the basis of a valid contract. Second-That the application was capable of being read as an application for all the sections of land, the deposit on which would not exceed the amount sent, which should not have been applied for by private applicants; and as that could be rendered certain on the last day for receiving applications, that it substantially specified the land applied for. Third-That in addition, the Government, having received the money and issued the land orders, were estopped from setting up that they did not constitute a valid contract. Fourth-That the Claimants' Relief Act was intended to apply to all cases in which an action would have lain against the Government were it an individual. Fifth-That though the Northern Territory Act, 1868, rendered it impossible for the Government to carry out their contract with the holders of land orders, it did not affect the rights of such holders to obtain compensation for the breach of such contract. THE declaration stated that the North Australian Company, Limited, sued James Newnham Blackmore, the person named as nominal defendant, for that theretofore, and after the passing of the Northern Territory Act, the Governor, with the advice and consent of the Executive Council, made certain rules and regulations[these were set out, and are published in the Government Gazette, November 26, 1863]-that Gregory Searle Walters was appointed as the officer in London to receive moneys and applications, and allot lands and issue preliminary land orders; and that March 1, 1864, was fixed as the day on which such office should be opened for the receipt of applications from persons desirous of becoming purchasers of land; that after the opening of such office, and within twenty-eight days before the lists of applications were closed, Alexander Lang Elder, George A. Anstey, C, S. Bagot, T. B. Graham, and Edmund Levi, who were promoters and directors of the plaintiffs' Company, which had not then been registered and incorporated, on behalf of the plaintiffs' said Company, signed and delivered to the said office, where the same was duly received, an application in the words and figures following :- "17, Bucklersbury, March 29, 1864. "Sir--We beg to forward you herewith a cheque on the Imperial Bank, Limited, for £8,000, for the purchase of lands, town and country lots, in the SUPREME COURT. NORTH AUSTRALIAN COMPANY COMMON LAW. Northern Territory of South Australia. It is to be understood that the demands of private individuals shall be satisfied before you allot any lands upon this application. "We are Sir, your very obedient servants, That the said application and cheque were received by the said Gregory Searle Walters, with the consent and acquiescence of the Government of South Australia, as application and deposit, under the said act and regulations, for so much of the 125,000 acres of country land and 781 town lots which were to be allotted by the said officer in London, not exceeding in the whole 400 sections of country land and one town lot each, as should not be applied for by private individuals, or otherwise, except by, or on behalf of the plaintiffs; that, after the said application and before the allotment, the plaintiffs were duly registered and incorporated, and afterwards, upon due notice, the said G. S. Walters, with the consent and acquiescence of the Government, allotted to the plaintiffs 125 allotments of 160 acres of country land and one town lot each, the plaintiffs paid £13,181 10s., being the sum of £40 3s. 9d. on account of each allotment, making, with the deposit, the sum of £20,741 10s.-(this was amended by leave of the Court to £17,741 10s.) and thereupon the said G. S. Walters issued preliminary land orders in the words and figures following: "South Australia. "Northern Territory Preliminary Land Order, Part I. original-No. "In pursuance of the provisions of the Northern Territory Act, the North Australian Company, Limited, of 4, Adam's Court, hath paid for one lot of land, consisting of a town section of half an acre or thereabouts, and a country section of one hundred and sixty acres, with a right of priority of choice, as provided in the regulations passed in pursuance of the provisions of the said Act. So soon as the said land shall have been selected you are to put him, his agent, or his assigns into possession thereof, and to procure a grant thereof to be made to him, his heirs, and assigns, subject to the laws and regulations of the Province of South Australia. "This preliminary land order is issued in duplicate, and upon presentation of either copy the other will become void. "Dated in London this 23rd day of December, 1864. "Entered-THOS. F. SMITH. "G. S. WALTERS, Agent-General. "To the Government Resident appointed under the Northern Territory Act." SUPREME COURT.{ NORTH AUSTRALIAN COMPANY COMMON LAW. The declaration went on to allege that all conditions were fulfilled, and all things happened, and all times elapsed, necessary to entitle the plaintiffs to performance of the said contract, and to select from and out of surveyed country lands in the said territory the 160 acres of country land and the town lot mentioned in the said order; and yet at the time of passing of the said Act, and thenceforth for five years after the date of the said preliminary land order, there were no surveyed country lands in the said Northern Territory ready for selection, and the Government of South Australia had not caused, nor did they cause a reasonable and sufficient quantity of country land to be surveyed, wherefrom the plaintiffs could select the said 160 acres of country land; nor was the site of the principal town of the said territory determined or surveyed, nor the plan mapped out in half-acre lots and exhibited for public inspection; nor was any general meeting of the holders of preliminary land-orders or their agent held to decide by lot the order in which they should select; nor was, nor could there be, any selection as required by the rules and regulations; and the Government of South Australia wholly neglected and refused to perform the contract, whereby the plaintiffs had lost the sum of £60 3s. 9d., paid by them for the said land, and the use of the said money, and divers sums of money and expenses paid and incurred by them in endeavouring to procure completion of the purchase. The declaration contained 327 other similar special counts in respect of different land-orders, and a count for money received by the South Australian Government for the plaintiffs' use. The defendant's pleas were 1. That after the payment of the moneys in the said count mentioned, and before any breach of the contracts therein declared upon, the plaintiffs exonerated and discharged the said Government from the performance of the said contracts and from the liability to perform the same within the period of five years therein mentioned. 2. That the said Gregory Searle Walters did not allot to the plaintiffs the various quantities of country land and town lots respectively as in the said special count is respectively alleged. SUPREME COURT. NORTH AUSTRALIAN COMPANY COMMON LAW. 3. That the said Alexander Lang Elder, G. A. Anstey, C. S. Bagot, T. B. Graham, and Edmund Levi were not Promoters and Directors of the plaintiffs' Company. 4. That they did not sign and deliver the applications in the said counts respectively mentioned. 5. That they did not pay the cheque or draft to the plaintiffs' banker as alleged. 6. That after the facts set out in the declaration in reference to the applications of the plaintiffs, the Governor, with the advice and consent of the Executive Council, made certain other rules and regulations under an Act No. 2 of 1869-70, entitled “An Act to amend the Northern Territory Act," and after the publishing of such rules and regulations (Government Gazette, 28th April, 1870), and within five years from the passing of the Northern Territory Amendment Act, 1868, the Governor caused to be surveyed, and there was surveyed, a reasonable and sufficient quantity of land in the said Territory, wherefrom the plaintiffs could select; and that the principal town was marked out in half-acre lots, and exhibited for public inspection, and, pursuant to the last-mentioned regulations, the drawing of lots to determine priority of choice took place on the 10th and the 11th of May, 1870, at the Government Land Office in Adelaide, under the supervision of the Commissioner of Crown Lands and four persons elected by the preliminary land order-holders; and the defendant further said that afterwards, and on the arrival of the Resident at the Northern Territory, the plans of the township and country lands were exhibited, and within seven days after the arrival of the vessel bearing instructions to the Commissioner of Crown Lands for the selection to take place, selection of town and country lands was made under the superintendence of the Resident; and all other things were done by the said Government and the Government Resident necessary to be done by the said Act and regulations. For a seventh plea, as to the money counts of the declaration, the defendant said that the Government was never indebted, as alleged. The defendant demurred to all the counts of the declaration M |