The question upon a file submitted has been referred by the Secretary to the Home and Territories Department, for advice as to the correctness of the view expressed by Mr Adrian Knox K.C. in an opinion, dated 18 June 1918, obtained by the solicitor for the Pacific and Papua Produce Ltd, a company claiming the issue of a certificate of title in fee simple to certain islands in the Conflict Group, as assignees of one H.A. Wickham who purported to exercise an option to purchase same prior to the coming into effect of the Papua Act 1905, section 20 whereof [in relevant part] reads as follows:

The Lieutenant-Governor may make and execute under the Public Seal of the Territory, in the name and on behalf of the King, grants and dispositions of any land within the Territory which may be lawfully granted or disposed of in the name of the King, but so that-

(a) no freehold estate in any such land shall be granted or disposed of;

This Act came into operation on 1 September 1906.

The view of Mr Knox, which is in question, is thus expressed in paragraph 2 of his opinion:

On the material submitted to me I am of opinion that the Crown grant dated 28 August 1906, and registered 29 August 1906, was a valid grant of the land therein described for an estate in fee simple, and that there is no legal obstacle to prevent the Executive Government of the Territory from issuing the grant to the purchasers from the grantees on payment of the purchase money mentioned in the grant. Such an issue of the grant would be merely a ministerial act done for the purpose of giving effect to a transaction lawfully carried out by the previous Administration.

In the absence of exact knowledge of the materials submitted to Mr Knox, it is not possible to express an opinion as to the correctness of his view based on those materials; but I have carefully considered the question on the materials in the file submitted, and, upon these, my opinion differs from that of Mr Knox.⁽¹⁾

Without attempting to set out all the facts which are, or may be, material, the following are some of the most important:

In 1896 the group of islands in question was leased to Mr H.A. Wickham for a period of 25 years, and the lease contained an option 'to purchase all or one or more of the islands ... at the price of 5s an acre'.

On 6 August 1906, Mr Carpenter, as attorney for Mr Wickham, applied to exercise this option, and the Executive Government on 9 August 1906 agreed to this.

The Government appears to have been desirous of helping the applicant, and expedited the transaction, and had the deed of grant ready to issue as soon as payment should have been made, so as to have the whole transaction completed before the commencement of the Act.

On 28 August 1906, this grant was signed by the Administrator of the Territory.

On 29 August 1906, it was entered in the Register Book by the Registrar of Titles.

In the grant prepared the area of the islands was computed at 6,000 acres, and the purchase price therefore amounted to £1,500. It appears that this computation was excessive, but it may have been due to the applicant that this was so.

It also appears that by 1 September 1906, the date of the commencement of the Papua Act, the application had not been finally dealt with, the applicant questioned the correctness of the estimate of the area, and consequently the amount of the purchase money payable, and asked that time should be allowed for payment. As expressed in the letter of the solicitor for the applicant to the Department of Home and Territories of 10 July 1918: 'Wickham alleges that area should only be 1500 acres, and as he is unable to finance full purchase money mentioned in grant, such grant is put aside'.

On 1 September 1906 the Papua Act came into force with its provision that 'no freehold estate . . . shall be granted or disposed of.

In the Papua Gazette of 8 September 1906, a notice was published dated 3 September 1906, purporting to notify that Crown grant for 6000 acres of Conflict Group to H.A. Wickham 'is now ready for issue, and may be obtained on application to this Office and upon payment of all Fees'.

This notice, I think, admitting that on 3 September 1906, the grant had not issued, and that consequently the fee simple had not passed, notified readiness to do what had become legally impossible, for after 1 September 1906, no freehold estate could 'be granted or disposed of.

However, the Crown grant was never issued, and the applicant continued correspondence on the dispute as to acreage and terms of payment, which by him and his successors has been continued to the present time.

By assignment registered on 2 May 1911, Wickham transferred his interest to the Conflict Group Planting Association, and in April 1911 the Pacific and Papua Produce Ltd purchased the rights of the Conflict Group Planting Association, but negotiations are still pending as to the form in which the leave to assign should be expressed. As regards these subsequent transactions it would appear that the assignees had full notice of the state of the title of the assignors.

Negotiations have from time to time been entered into with a view towards having the Papua Act amended to permit of this fee simple estate passing, but so far without result.

It is now urged that although the grant did not issue before the commencement of the Papua Act, yet what was done in August 1906 was sufficient to pass the fee simple to Wickham, i.e. that the signing of the grant on 28 August 1906 and registration on 29th was sufficient. For this proposition is cited by applicant's solicitor the authority of Halsbury, Laws of England, Vol. 6, p. 479, to the effect that grants under the Great Seal require no delivery, but that sealing and enrolment are sufficient.

As to what was sufficient to pass the fee simple in Papua in August 1906, this depends, I think, on whether the statutory requirements of Ordinances then in force were, or were not, fulfilled.

The Land Ordinance 1899, No. 4 of 1899, was then in force. Section XIV provided:

The Administrator in Council may in the name of Her Majesty and under and subject to the provisions of this Ordinance grant in fee-simple any Crown Land within the Possession.

Section XVIII provided that every grant shall be in the form determined and- having issued to the person therein named shall be valid and effectual to convey to and vest in such person subject to law the lands therein described for the estate set forth therein.

Section XX:

All Crown Grants shall be in duplicate.

********

The duplicate Grants shall be delivered to the Registrar-General who shall register the Grant in accordance with law and when so directed shall deliver one duplicate to the grantee. Section XXI:

Prior to the issue to the grantee of any Crown Grant the following fees shall be paid ... Section XXII:

When any Crown Grant is ready to issue, a notice of the fact shall be published in the Gazette . . .

Pausing here, it would seem clear that, the authority to grant the fee simple being 'subject to the provisions of this Ordinance', and the Ordinance providing that, prior to the issue of the grant, certain fees must be paid, and that the grant 'having issued to the person therein named shall be valid and effectual to convey to and vest in such person' the estate set forth, no estate would pass until the issue of the grant.

Under section XX moreover the Ordinance appears to contemplate an inchoate grant being delivered to the Registrar-General and his registering it, but still there remains something to be done before it is 'issued', i.e. he, 'when so directed shall deliver one duplicate to the grantee'. Until he is 'so directed' he retains both duplicates, and no estate passes until the grant issues.

In this case the Registrar-General was not directed to deliver one to the grantee for the good and sufficient reason that the grantee nominated would not pay the purchase money, even if he had paid the prescribed fees, which, however, does not appear, and, indeed, as the grant was not ready to issue till 3 September 1906, its issue by that time had been prohibited by the Papua Act 1905.

But there was in Papua in August 1906 also in force the Real Property Ordinance 1889, No. 11 of 1889, which adopted the Real Property Acts in force in Queensland on 4 September 1888, and it may be argued that the effect of registration under those Acts was to pass the fee simple. These Acts are conveniently collected and annotated in The Real Property Acts of Queensland by Power, Groom & Graham.

In the Real Property Act 1861, sections 34 and 44 might appear to have this effect, though section 33 deals only with certificates of title issued when land is brought under the Act, and says nothing about grants issued in accordance with section 15. But before the Real Property Acts are construed as inconsistent with the Land Ordinance 1899, I think the whole of the Acts should be considered.

The Real Property Act 1861, section 15, provides: 'All lands in the colony remaining unalienated from the Crown . . . shall, when alienated in fee, be subject to the provisions of this Act' and Power, Groom & Graham at p. 21 note (c) (and at p. 38) refer to the procedure after freehold is acquired of forwarding Crown grant to Titles Office, where it is registered and issued.

As regards applications to bring land under the Act section 29 provides that: 'It shall be lawful for any applicant to withdraw his application at any time prior to the issuing of a certificate of title . . . '

I think the whole Act shows that land does not come under the Act until the Crown grant or certificate of title is registered and issued.

This is quite consistent then with the Land Ordinance 1899, which shows that the fee simple does not pass, and the land is not alienated, until the grant has issued.

I think, moreover, that if this construction of the Real Property Acts is not correct, and if by virtue of section 34 it should be held that upon the grant being entered in the Register Book the person named as taking the estate must be deemed to be the registered proprietor thereof, even though the grant has not issued, then such a grant would be void, for, before registering the grant, it would have been the Registrar's duty to see that the requirements of the Land Ordinance 1899 were fulfilled, and a grant disregarding those requirements would be ultra vires.

It is a difficult question to determine how far the Real Property Acts bind the Crown, as to which see Power, Groom & Graham, pp. 53-4, but the following decisions are in point:

Re E. B. Cargill and Others; Re the Land Transfer Act 7 N.Z.L.R. 481: Land which has never been alienated (or in New Zealand contracted to be alienated) from the Crown cannot be brought under the Land Transfer Act. A Land Registrar has no jurisdiction to grant a certificate of title to such land, and a transferee of such land bona fide and for value obtains no better title than the transferor had. (But as regards bona fide transferees vide In re the Okirae Block 10 N.Z.L.R. 677, dissenting.)

Solicitor-General v. Mere Tini 17 N.Z.L.R. 773: The Court of Appeal held that nothing in the Land Transfer Act interferes (so long as the lands have not been transferred to a bona fide purchaser for value) with the right of the Crown to claim a repeal of a grant, pr certificate of title in lieu of a grant, for any cause which would have been sufficient prior to the Act.

Cumming v. Forrester 2 Jac. & W. 334; 37 Eng. Rep. 656 at 659: A Crown grant made by mistake may be recalled, notwithstanding derivative titles.

R. v. Clarke 7 Moore P.C. 77; 13 Eng. Rep. 808: A grant of lands in New Zealand by the Governor in excess of the amount prescribed by Ordinance held to be void.

For these reasons I think that the Crown grant dated 28 August 1906, and registered 29 August 1906, was not a valid grant of the land therein described for an estate in fee simple, and that, the estate not having passed, the Papua Act 1905 is, unless and until amended, an insuperable obstacle to prevent the Executive from issuing the grant.⁽²⁾

[Vol. 16, p. 1]

(1)Shortly after writing this opinion Mr Groom was provided with a copy of the brief to Mr Knox and on 16 November 1918 [Vol. 16, p. 3|] he stated: 'There is nothing in this new material to induce me to alter my opinion of 30 October 1918'.

(2)See also Opinion No. 632.