Eakin v Minister for Land [1991] QLC 272

In the matter of the liability of Special Lease No 40/44408 to forfeiture. Lessee: Anthony 'Andrew Eakin. DECISION (Hearing at Taroom) LAND COURT, BRISBANE 22nd April, 1991 Anthony Andrew Eakin was granted a lease for special purposes under Section 198 1 (a) of the Land Act 1962-1981 for a term of 20 years from 5th February, 1982. One of the conditions of the lease was "The lessee shall, within six months from the commencement of the term of the lease and to the satisfaction of the Minister, enclose the leased land with a good and substantial fence and shall thereafter during the term of the lease maintain the leased land so enclosed". By letter dated 13th August, 1990, the matter was referred to the Land Court for determination of the question of the matter of forfeiture of the lease for non-compliance of the condition relating to fencing quoted above. By Notice of Case coming on before the Land Court dated 21st February, 1991, addressed to Mr A.A. Eakin, PO Box 55, Cracow, Queensland 4719, the lessee, Anthony Andrew Eakin, was advised that the matter would be brought before the Land Court at Taroom at 2.30 p.m. on Monday, 8th April, 1991, for hearing. When the matter was called on for hearing there was no appearance by or on behalf of the lessee. Mr D. Drew, Legal Officer of the Department of Lands, appeared on behalf of the Minister for Lands and tendered to the Court a chronology of the events, reports and correspondence relating to this matter since the lease issued. [1991] QLC 272 -- 1 of 3 -- 2 In brief, there is a history of correspondence dating back to 1983 concerning the failure of the lessee to comply with the condition of the lease, leading up to the matter being referred to the Land Court by Notice of 28th November, 1985. This was subsequently withdrawn and a further extension of time was granted to the lessee to comply with the fencing condition. In the final result, the Honourable the Minister issued a notice dated 28th May, 1990, advising that pursuant to the provisions of Section 297(1) of the Land Act he intended to refer to the Land Court the question of liability of forfeiture of the lease for failure to comply with the fencing condition. The Notice of 28th May, 1990, was sent to the lessee by prepaid certified mail addressed to the lessee at PO Box 55, Cracow, Qld 4719, to 10 Perrot Street, Paddington Heights Q 4604 and to 40 Wingara Street, Yeerongpilly Qld 4015. All such letters were returned unclaimed. The return notice of the letter addressed to the lessee at PO Box 55, Cracow Qld 4719, was returned with a notation of 2nd July, 1990, stating "Refused" and initialled by the Post Mistress. Evidence was given by Land Inspector Mr R.J. Quaite who gave details of the history of this matter. He tendered a report on performance of development conditions of the Special Lease No 40/44408 dated 4th April, 1991, stating that his inspection on 12th March, 1990, revealed that the land had not been enclosed with a good and substantial fence as required under the condition of the lease. He advised that he had interviewed the Post Mistress at Cracow who ~ advised him of the refusal of the lessee to accept delivery of the letter referred to above. Mr Drew directs my attention to the provisions of Section 381 (2) of the Land Act regarding service of any notice required to be given or served by the -- 2 of 3 -- 3 Minister to or upon any person. This provides that the notice may be sent by address to such person at his last known place of address. It is his submission that the Minister has complied with this requirement and that the Cracow address was the last known address of the lessee. The Notice of Case coming on before the Land Court for hearing dated 21st February, 1991, was addressed to the lessee at the same address and has not been returned to the Court unclaimed. I am satisfied on the evidence that service of the Notice of the reference to the Land Court has been given in accordance with the requirements of the Land Act and in the absence of the return of the Notice of Hearing that the lessee was aware of that hearing which he failed to attend. The evidence clearly establishes not only that the lessee has failed to comply with the condition of the lease to enclose the lease land with a good and substantial fence but that the Minister has been most tolerant in granting extensions to enable the lessee to comply with the condition. In the result I find that the lessee has failed to perform the conditions of the lease, the subject of the reference, within the time prescribed and any extension thereof, and that liability of the lease to forfeiture for such failure is established. (D.J. Barry) President of the Land Court -- 3 of 3 --