Registration of void instrument without fraud-Indefeasibility of title-Land Transfer Act 1915, ss. 58, 59, 68, 73, 75, 198-Public Works Act 1908, ss. 19, 19, 24.- Any person who without fraud succeeds in procuring himself to be registered a proprietor of land under the Land Transfer Act has an indefeasible title, whether he is a purchaser for value or not, and although the documents which form the basis of his registration are absolutely inoperative in themselves. Opinion as to the effect of the decision of the Privy Council in Assets Co. Ltd., v. Mere Roihi ([1905] A.C. 176), expressed by Edwards, J., in In re Mangatainoka Block (33 N.Z.L.R. 23, 68; 15G.L.R. 489, 509) approved. Gibbs v. Messer ([1891] A.C. 248) distinguished. Plaintiff was the registered proprietor of a piece of land (on which there was a building) in the City of Wellington. A proclamation by the Governor-General that this land had been taken for the purposes of a tramway, and that it should vest, as from a specified day, in the defendant corporation was gazetted, and subsequently registered, in pursuance of s. 24 (3) of the Public Works Act 1908 against the land. Plaintiff contended that, as the land was occupied by a building, the previous consent of the Governor in Council or the consent in writing of himself, the owner, was a necessary condition (under s. 15 (b) of the Public Works Act 1908) of the taking of the land; that neither condition had been complied with ; and that therefore the proclamation was void. Plaintiff therefore claimed a declaration that the proclamation

was void; that the registration thereof was obtained by fraud or otherwise wrongfully by the defendant corporation; and that he was entitled to have the land Transfer Register rectified by the removal therefrom of the entry of such registration. Held, that, even assuming the proclamation to be void, its registration under the Land Transfer Act had conferred on the defendant corporation, in the absence of fraud, an indefeasible title to the land affected; that there was no evidence of fraud; that the plaintiff was not entitled to have the Register rectified. BOYD v. MAYOR OF WELLINGTON, 1924 N.Z.L.R. 1174; G. L. R. 489. [New Zealand.]

tax." Held, that both the Federal land tax and the State land tax came within the exception, and that the lessee was therefore not liable to pay the Federal land tax, which was first imposed by the Federal Land Tax Assessment Act 1910. In re WALKER'S AND KELLY'S LEASE, 1924 V.L.R. 85; 30 A.L.R. 49; 45 A.L.T. 98. [Victoria.]

Land tax-Lease-Covenant to pay rates and taxes-Exception of "land tax "Liability of lessee for Federal and State tax.By a lease dated in October, 1899, for a term of thirty years from 1st January, 1900, the lessee covenanted as follows: That the company, its successors or assigns will pay the rent hereby reserved at the time and in manner hereinbefore appointed for payment thereof without any deduction whatsoever and shall and will also pay all rates, taxes, charges, assessments, and other outgoings and impositions to be levied or imposed on the said land during the said term or upon the landlord or tenant in respect thereof (excepting land tax)." At the date of the lease the only land tax payable was State land tax imposed by the Taxation Act 1884. The Federal Constitution had not been established, but Federation Enabling Acts had been passed in South Australia in 1895 and in 1898-1899. The Imperial Act constituting the Commonwealth was assented to in 1900 and came into operation in 1901. Federal land tax was first imposed in 1910. By s. 30 of the Federal Land Tax Assessment Act 1910 a proportion of Federal land tax is payable by lessees who prior to the passing of the Act have agreed to pay taxes on land. 8. 76 of the Taxation Act 1884, a lessee is exempted from paying land tax unless this tax is expressly referred to. Held, in the circumstances, that both State and Federal land tax were excluded from the covenant to pay taxes by the operation of the words

By

excepting land tax.' Hill v. South Australian Brewing Co. (1917 S.A.L.R. 146; [1919] A.C. 519) distinguished. Solomon v. New South Wales Sports Club ([1915] 19 C.L.R. 698) applied. SOUTH AUSTRALIAN BREWING COMPANY LIMITED v. EXECUTOR TRUSTEE AND AGENCY COMPANY LIMITED, 1923 S. A.S.R. 325. [South Australia.]

Lease-Covenant to rebuild if premises destroyed by fire-Impossibility of performance-By-law applying to area within which premises situated-Buildings constructed substantially of wood By-law prohibiting construction of buildings other than brick, stone, concrete, etc.-"Rebuild,' meaning of Whether covenant to rebuild rendered impossible of performance by change in law-Lessee's breach of covenant-Effect on right to enforce lessor's covenant-Local Government Act 1915 (No. 2656), s. 198.In re DE GARIS & ROWE'S LEASE, 1924 V.L.R. 38. [Victoria.]

Same case : 45 A.L.T. 84; 1923 Digest, col. 243.

Lease-Covenant to pay insurance premiums -Increase of insurance by lessor-Whether

"

premiums in respect of increase recoverable from lessee. Where a lease provided that the lessee will, during the terms pay to the lessor the insurance premiums in respect of fire insurance on the buildings on the said land," and there was, at the time of the execution of the lease an insurance of £600 on the buildings, which was subsequently increased by the lessor to £1,250. Held, that the lessee had covenanted to pay the premiums on the policy existing at the time of the execution of the lease and the lessor therefore could not claim from him premiums payable in respect of the subsequent increase. PUBLIC TRUSTEE v. GREY, 19 M.C.R. 46. [New Zealand.]

Lease-Covenant by lessee to pay taxes on or in respect of rent-Income tax-Lessee's liability. A lessee covenanted with the lessor to pay all taxes, whether imposed by the Parliament of the Commonwealth, or of the State, which might be "assessed, charged or imposed upon the demised premises or upon the rent thereof or on the owner, occupier or lessee in respect thereof," except Federal land tax. In an action by the lessor for breach of the covenant the lessor alleged in the declaration that income tax had been duly assessed, charged and imposed by the taxation authorities of New South Wales upon the lessor as owner of the premises in respect of the rent thereof received by the lessor, that the lessor had been compelled by law to pay the said tax and had duly demanded payment by the lessee of the amount so paid, and that all times had elapsed, etc., to entitled the lessor to the performance by the lessee of the covenant, yet the lessee repudiated any obligation in respect thereof. A demurrer to the declaration having been overruled, on appeal to the High Court, held, by Knox, C.J., Isaacs and Rich, JJ. (Gavan Duffy and Starke, JJ., dissenting), that the demurrer was properly overruled. By Knox, C.J., on the ground that in the phrase on the owner in respect thereof," the word thereof meant of the premises or the rent," and that the State income tax was a tax in respect of rent received by the lessor. By Isaacs and Rich, JJ., on the ground that the State income tax was a tax upon the rent," within the meaning of the covenant. Per Isaacs and Rich, J. The measure of the liability of the lessee under the covenant was the amount of income tax which the lessor would have had to pay if the rent received from the lessee had been the lessor's only income. Per Knox, C.J.: The measure of that liability was the amount by which the income tax paid by the lessor was increased by reason of the receipt of the rent from the lessee. Marrickville Buildings Ltd. v. Union Theatres Ltd. (23 S. R. 581; 40 W.N. 134) affirmed with a variation. MARRICKVILLE BUILDINGS LTD. v. UNION THEATRES LTD., 41 W. N. 86. [High Court.]

Lease-Covenant not to sublet-BreachForfeiture-Waiver.-Waiver of a right of re-entry can only occur where the lessor, with knowledge of the facts upon which his right to

re-enter arises, does some unequivocal act recognising the continued existence of the lease. FULLERS' THEATRES AND VAUDEVILLE v. ROFE, 41 W.N. 19. [Privy Council.]

Lease-Covenant not to sublet without consent of lessor and a third party-Covenant by lessor not to object if third party raises no objection-Proviso for re-entry on breach.— Effect. In an action of ejectment it appeared that the plaintiff leased to the defendants portion of certain land held by him under a lease from the Municipal Council of Sydney. The lease to the defendants contained a covenant not to sublet without the consent of the plaintiff and the City Council in writing first had and obtained, and a clause of forfeiture in case of breach of such covenant. By a subsequent deed this sub-lease was extended for a further term; this deed contained a covenant by the plaintiff that so long as the City Council raised no objection he would not object. Later the plaintiff leased the remaining portion of the land leased to him by the Council, to the defendants, and that deed contained both the above mentioned covenant in respect to any sub-letting and the proviso for re-entry on breach. The defendants informed the plaintiff in writing that they proposed to execute a sub-lease of portion of the premises for ten years at £50 per week ; that they had obtained the Council's consent and asked the plaintiff for his consent. The plaintiff's solicitor then wrote requesting that a copy of the proposed lease be submitted to him before advising his client to consent. The defendants without replying to this letter executed the lease, and the tenants went into occupation. Held, that, although the defendants had obtained the City Council's consent, there had been a breach of the covenant, and that the plaintiff was entitled to succeed in his action to recover possession in that the defendants had not obtained the plaintiff's consent or shown that he had withheld or refused to give it. Rofe V. Fullers' Theatres and Vaudeville Ltd. (22 S. R. 208; 39 W. N. 116) affirmed by Privy Council. FULLERS' THEATRES AND VAUDEVILLE v. ROFE,, 41 W.N. 19. [Privy Council.]

Preliminary agreement to lease-Consent of mortgagees-Compliance with terms of agreement.-Plaintiff agreed to lease, and defendant agreed to take on lease, a farm property on the terms and conditions set out in an agreement to lease, which expressly provided that the agreement was entered into subject to the consent of any mortgagees of the property being obtained to the lease." Two of the three mortgagees gave unconditional consents, while the consent of the remaining mortgagee was in the following terms: 'We... hereby consent to the said memorandum of lease, without prejudice, however, to our rights and remedies under the said deed of mortgage No. 268810." Held, that the consent in question was effective and was a sufficient compliance with the terms of the agreement. TATTLEY V. WAGSTAFF, 1924 N.Z.L.R. 813; G.L.R. 402. [New Zealand.]

"

Option to purchase-Rule against perpetuities-Lease for uncertain period terminable by notice, with option to purchase-Whether option creates an interest in land-Option granted to partners—Dissolution and equitaable assignment of interest-Whether option enforceable by continuing partner-Transfer of land-Transfer by lessor-Easement— Rights under option-Transfer of Land Act 1915, s. 72.-By memorandum of agreement dated the 26th October, 1921, A. agreed to let to B. and C. certain shop premises on land under the Transfer of Land Act 1915 for the period of five years, with option of purchase at £700, at the weekly rent of 35s. payable weekly, such tenancy to commence on the 21st day of November, 1921, and not cease until notice in writing shall have been given by either party to the other, and such tenancy to continue for the term of five years at the least." B. and C. entered into possession of the premises under the agreement, and carried on thereon a partnership business, and rent had thenceforward been duly paid. On the 24th November, 1921, in consideration of natural love and affection, A. transferred to his wife D. the land in question, and on the 3rd December, 1921, D. became and thenceforth remained the registered proprietor thereof. In June, 1922, B. bought from C. and paid for all C.'s interest in the partnership business and assets, and thenceforward B. alone occupied the leased premises, and no further interest on the part of C. was asserted by him or by any person. On the 13th September, 1923, D. purported to grant to A. an easement of right of way over part of the land in question, and this instrument was lodged for registration. Held (1) that the option was not given for a period which might exceed the limit fixed by the rule against perpetuities, inasmuch as the tenancy and with it the option, could be terminated by either party by notice after the expiration of five years, and that the option was accordingly valid; (2) that assuming that B. was no more than an equitable assignee of C.'s interest in the lease, and that C. (who was not a party to the action) was still in law a co-tenant with B. (the plaintiff) and a coowner of the option, yet, on the evidence, B. was, as between himself and C., entitled to all C.'s rights, and, if necessary for enforcing them, entitled to use C.'s name, and that in such circumstances the retirement of C. had not rendered the option unenforceable by B. Friary Holroyd and Healey's Breweries Ltd. v. Singleton ([1899] 1 Ch. 86; [1899] 2 Ch. 261) distinguished; (3) that the interest of B. under the option, although not an obligation "running with the land," represented an interest of a tenant within s. 72 of the Transfer of Land Act 1915, as defined by Sandhurst Mutual Permanent Building Society v. Gissing ([1899] 15 V.L.R. 329) and was consequently effective against D., whose grant of an easement could be registered only subject to the rights of B. under the option. McMAHON v. SWAN, 1924 V.L.R. 397; 46 A.L.T. 29; 30 A.L.R. 288. [Victoria.]

Lease of hotel-Sublease-Covenants to

keep in repair and to procure renewal of license Dilapidations - Liability to effect repairs. The lessee of an hotel sublet the same for a term of five years, the sub-lease containing, inter alia, covenants on the part of the sublessees to use their best endeavours to obtain a renewal of the licenses in respect of the premises, and also to keep all buildings in repair, reasonable wear and tear excepted. The sublease also contained a clause pro⚫ viding that if any structural alterations were required by competent authority as a condition of renewal of license the same should be done by and at the expense of the sublessor. In June, 1923, the licensing committee, as a condition of granting a renewal of the license, required that certain repairs and alterations should be made. These were given effect to by the sublessees, who thereupon claimed to recover the cost thereof from the sublessor. Part of the work done consisted of making good dilapidations which were the result of fair wear and tear. Other parts of the work consisted of putting in a hot-water service to the bars, and laying pipes to carry the waste water to the sewer. Held (1) the mere fact that fair wear and tear was excepted from the sublessee's covenant to repair did not impose on the sublessor any obligation to make good any damage due to wear and tear, and in the absence of any contract to do so the sublessor was not bound to effect or pay for any repairs in the demised premises. Arden v. Pullen (10 M. & W. 321); Gott v. Gandy (2 E. & B. 845), and Colebeck v. Girdlers Co. (1.Q.B.D.234) followed; (2) the supply of the hot water service and the laying of the pipes was not a structural alteration. COLLINS v. WINTER, 1924 N.Z.L.R. 449; G.L.R. 278. [New Zealand.]

Lease-Hotel-Covenants-Offences against Licensing Acts-Breach of covenant-Waiver Eviction-Termination of Tenancy.-A lease of an hotel contained a provision entitling the lessor upon breach of any covenant or condition of the lease to determine the lease in respect of any breach or default by the lessee of or in respect of any covenant or condition of the lease to which s. 21 of the Conveyancing Act 1915 did not extend. Held, the words to which s. 21 of the Conveyancing Act does not extend" related to the words breach or default" and not to the words Where covenant or condition." a lease of an hotel gave the lessor power to enter and determine the lease upon breach of any of the covenants of the lease, and the lessee with the knowledge of the lessor had continually carried on a trade in liquor after hours contrary to a covenant of the lease. Held, that the lessor had waived the benefit of the covenant generally and not merely in the particular instances which in fact came to his knowledge and the lessor was therefore unable to rely upon the provisions of s. 17 of the Landlord and Tenant Act 1915. HOYNE v. MULCAHY, 46 A. L.T. 96; 30 A.L.R. 398. [Victoria.]

Lease-Covenant for renewal-Construc

66

tion-Rent to be fixed by arbitration.-A lease for the term of twenty-five years conferred on the lessee a right of perpetual renewal for the like term and on the like covenants at a rent to be determined by arbitration. The renewal clause was as follows: And the lessors . . . do hereby covenant with lessee that if he... shall be desirous of taking a new lease or leases of the premises hereby demised they, the lessor . shall and will if requested by him. in writing so to do at any time or times before the expiration of the term of twenty-five years years from the 1st day of June, 1902, grant and execute another lease of the said hereditaments and premises or any part or parts thereof to be selected by the said lessee. A further clause in the lease provided that the lesseǝ should not be bound to accept the new lease if he considered the rent fixed by the arbitrators to be excessive. Held, (1) that the true effect of the renewal clause was to oblige the lessor at the end of the term (if so required by the lessee during the term) to grant a renewed lease or renewed leases of the whole or any part or parts of the demised premises for a further term of twenty-five years; (2) that if the lessee refused a new lease of the whole property his right of renewal was finally at an end, and similarly if he once refused a renewed lease of any particular part of the property his right of renewal was finally at an end in respect of that part; (3) that in determining the rental under the renewed lease it was the duty of the arbitrators to determine the rental by reference to the prospective value of the premises during the new term commencing on the expiry of the old. HENI MATEROA v. ZENKER, 1924 G.L.R. 600. [New Zealand.]

Option to renew Notice by lessee accepting -Notice given during term-Obligations of lessee as to signature of new lease.-The plaintiffs leased an hotel to the defendants for a term of five years from November 24, 1919. There was in the lease a covenant that if the lessees duly paid the rent and performed the covenants thereof, and should on or before May 24, 1924, give the lessors notice in writing desiring a further lease from November 24, 1924 and pay £250 deposit then the lessors would grant the lessees a further leave of five years from that date on the same terms, except the renewal clause, and upon the further condition that the lessees should pay before November 24th, 1924, the sum of £6,000 less the deposit, for the goodwill. Prior to May 24, 1924, the lessees gave the lessors written notice of their desire for a further lease and also paid the required deposit, and thereupon and before the expiry of the term the lessors tendered a lease to the lessees and demanded its execution by way of acceptance of the new lease. The lessees refused to execute same on the ground that they were not under obligation to accept the renewed lease until the expiry of the old lease. Held, Giving judgment for the defendants, that the plaintiffs had no accrued cause of action. KENNEDY v. BERRYMAN, 1924 G.L.R. 630. [New Zealand.]

Lease Acceptance by lessor of lesser amount than amount reserved as rent-Native land-Alienation "Disposition of rentAgreement by lessor to accept a lesser amount than rent reserved-Contract-Payment by third person of a lesser sum in satisfaction of debt. Sect. 39 (1) of the Finance Act 1923 is general in its application and is not limited to dwelling houses under Part I. of the War Legislation Amendment Act 1916, although by sub-s. 4 it is to continue in force only while Part I. of the War Legislation Amendment Act 1916 is in force. An agreement by a native lessor to accept from his lessee a lesser sum in full payment of the rent receivable by him in respect of his interest in native land would, if valid, be a disposition of rent within the meaning of s. 210 (2) of the Native Land Act 1910, and a native is therefore incapable of making such an agreement. A payment by a third person, not bound by the contract of a lesser sum in satisfaction of a larger liquidated sum owing by a debtor discharges the whole debt. Welby v. Drake (1 C. & P. 557); Cook v. Lister (13 C.B. (N.S.) 543); and Hirach and Punamchand v. Temple ([1911] 2 K.B. 380) applied. Two of the defendants, who were respectively the wife and son of the other defendant, leased certain lands from the plaintiff who was a native, and the other defendant guaranteed the payment of the rent. The plaintiff at various times during the term agreed to accept a lesser sum in satisfaction of the rent due, and this lesser sum was paid by D. & Co. on the undertaking by the plaintiff that such lesser sum was accepted in full settlement of the debt then due and payable by the guarantor. D. & Co. were financing the guarantor in carrying on the farms leased by the plaintiff to the two defendants abovementioned, and they were not prepared to carry him on further unless the rent was reduced, and this the plaintiff knew, and although the guarantor interested himself in endeavouring to obtain a reduction in the rent, all real arrangements were made by D. & Co. and the plaintiff recognised them as the real person with whom she was dealing. Held, (1) that the leases were not made subject to a guarantee being given, and the contract, therefore, between the plaintiff and the guarantor was an independent contract unaffected by the provisions of the Native Land Act 1909, (2) that D. & Co. were third parties within the meaning of the decided cases, and that, the payments made by them being in pursuance of a contract to accept the same in full settlement of the debt, the plaintiff was precluded from suing the guarantor for the balance. TOIA BARNS v. JACOBSEN, 1924 G.L.R. 344. [New Zealand.]

Lease Consent to transfer on condition imposing increased rent-" Penalty or in the nature of a fine ”—Licensing Act 1908, s. 178. -The lease of certain lands and premises on which a licensed public house was erected contained a proviso that in the event of the lessee transferring, subleasing, or otherwise parting with his interest in the lease before