YMCA v Chief Executive, Dept of Transport & Main Roads
[2012] QLAC 3
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- Unreported Judgment
- Appeal Determined (QCA)
- YMCA v Chief Executive, Dept of Transport & Main Roads[2012] QLAC 3
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YMCA v Chief Executive, Dept of Transport & Main Roads[2012] QLAC 3
YMCA v Chief Executive, Dept of Transport & Main Roads[2012] QLAC 3
LAND APPEAL COURT OF QUEENSLAND
CITATION: | YMCA v Chief Executive, Dept of Transport & Main Roads [2012] QLAC 003 |
PARTIES: | THE YOUNG MEN’S CHRISTIAN ASSOCIATION OF BRISBANE (appellant) v THE CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS (respondent) |
FILE NO: | LAC005-11 |
DIVISION: | Land Appeal Court |
PROCEEDING: | Appeal |
DELIVERED ON: | 27 April 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2011 |
COURT: | Peter Lyons J Mr PA Smith Mr WA Isdale |
ORDERS | See [2012] QLAC 004 |
CATCHWORDS: | PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – RULES OF COURT – POWERS OF COURT IN RELATION TO COURT – where cross–appeal filed outside 42 days – where Land Court Rules 2000 make no provision for cross appeals – whether Land Appeal Court has power to determine issues raised on cross appeal REAL PROPERTY – COMPULSORY ACQUISITION – OTHER MATTERS – where land was held under a Deed of Grant in Trust – where land was resumed – whether trust came to an end upon resumption REAL PROPERTY – COMPULSORY ACQUISITION – COMPENSATION – ASSESSMENT – where at the preliminary hearing the member of the Land Court held that s 18 (5) of the Acquisition of Land Act 1967 did not preclude compensation for resumption including costs incurred by the appellant to relocate or reinstate its operations – whether any reason why compensation might not be assessed by reference to the costs of reinstating the appellant’s operation Acquisition of Land Act 1967 Land Act 1962 (Qld) Land Act 1994 (Qld) Land Court Act 2000 Land Court Rules 2000 Religious Educational and Charitable Institutions Act 1861 Uniform Civil Procedure Rules 1999 American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 considered Brady v Stapleton (1952) 88 CLR 322 considered Fouche v The Superannuation Fund Board (1952) 88 CLR 609 considered Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 considered Western Australia v Ward (2002) 213 CLR 1 considered |
COUNSEL: | GR Allan with M Van der Walt for the appellant DR Gore QC with J Horton for the respondent |
SOLICITORS: | Anderssen Lawyers Pty Ltd for the appellant Clayton Utz Lawyers for the respondent |
- [1]Prior to 11 April 2008, the appellant (YMCA) held land described as Lot 713 on Crown Plan B3832, County of Stanley, Parish of Enoggera, located at Lutwyche Road, Lutwyche (the land), under a Deed of Grant in Trust (DOGIT). The land was resumed under the provisions of the Acquisition of Land Act 1967 (AL Act) on that date. YMCA has claimed compensation under the AL Act. The parties formulated a preliminary issue for determination by reference to s 18(5) of that Act. YMCA has filed a notice of appeal against the determination; and the respondent has filed a notice of cross-appeal.
- [2]The primary issues raised in these proceedings are whether, on the proper interpretation of s 18(5) of the AL Act, compensation may be determined by reference to the costs to be incurred by YMCA in relocating its operation to another site (including the cost of land and improvements); and whether the respondent might validly cross-appeal, or otherwise in these proceedings challenge the determination of the Land Court.
Background
- [3]YMCA is a body corporate established under the provisions of the Religious Educational and Charitable Institutions Act 1861. The land was granted to it by a Deed of Grant dated 5 April 1966 under s 334 of the Land Act 1962 (Qld) (1962 Act). The Deed was expressed to be “… subject to the Trusts, Conditions, Reservations, and Provisoes hereinafter contained”; and was said to be “Upon Trust for Recreation (Youth Community Centre) purposes and for no other purposes whatsoever …”. Prior to the resumption, YMCA conducted a community recreation centre (including a gymnasium) and a child care centre on the land, and also used it for archival storage. Although the 1962 Act was repealed by the Land Act 1994 (Qld) (1994 Act), the DOGIT continued to be in force.
- [4]YMCA filed an originating application in the Land Court, claiming compensation for the resumption in the sum of $11,624,000 plus GST.
- [5]As will be seen, s 18(5) of the AL Act restricts the amount of compensation payable to a trustee to “the amount of actual damage caused to the trust by reason of the taking …”. On 5 January 2010 an order was made in the Land Court for the determination by way of a preliminary hearing of the following issue:
"Whether, on the proper interpretation of s.18(5) of the Acquisition of Land Act 1967, in particular, of the expression ‘the amount of actual damage caused to the trust by reason of the taking’, in a case where the trust is a trust of a lot of land, and the land resumed was the whole of that lot, the compensation payable to the claimant may or may not include any costs incurred by the claimant to relocate or reinstate its operation to another site."
- [6]The order made as a consequence of the preliminary hearing was as follows:
“The Court Orders that:
- The trust, pursuant to the provisions of the Land Act has come to an end but the YMCA is not precluded from claiming compensation for the actual damage suffered by them as a consequence of the resumption.
- The amount of actual damage caused to the YMCA as trustee can include the costs of reinstatement of their operations on other land.
- It is open for the reinstatement method to be applied in determining the compensation in this case but that is not the only approach which might be adopted.
- The determination of the entitlement to an assessment of compensation is to be made pursuant to the provisions of the Acquisition of Land Act 1967.
- In this case where the land resumed was the whole of the land the subject of the deed in trust governed by the Land Act 1994 the compensation payable to the Applicant may, but will not necessarily, include any costs incurred by the Applicant to relocate or reinstate its operation to another site such as those claimed in the Applicant's claim for compensation dated 27 November 2008.”
- [7]On 3 August 2011, YMCA filed a notice of appeal to this Court. On 14 September 2011 the respondent filed a notice of cross-appeal, outside the time within which a notice of appeal is to be served under s 65 of the Land Court Act 2000 (LC Act) (the LC Act makes no express provision for a cross-appeal); and outside the time provided for filing a notice of cross-appeal under r 755 of the Uniform Civil Procedure Rules 1999 (UCPR).
- [8]YMCA’s notice of appeal was confined to paragraphs 1 and 2 of the order. The respondent’ notice of cross-appeal was against paragraphs 2, 3 and 5 of the order.
The strike out application
- [9]YMCA submitted that the respondent’s cross-appeal was required by s 65(1) of the LC Act to be served within 42 days of the Land Court’s order; and because that did not occur, this Court has no jurisdiction to hear the cross-appeal.
- [10]The respondent submitted that the institution of YMCA’s appeal had the effect that r 754 and r 755 of the UCPR were engaged; as well as r 756; that accordingly the respondent could contend for different orders than those made in the Land Court, without a notice of cross-appeal; and that in any event there was a jurisdiction to extend time which should be exercised in the respondent’s favour.
- [11]It is trite to say that a right of appeal is a creature of statute. A right to appeal to this Court from a decision of the Land Court is conferred by s 64 of the LC Act.
- [12]That right is to appeal against “all or part of the decision of the Land Court”. The term “decision” is not defined. However, the Land Court has the jurisdiction conferred on it under an Act,[1] including “jurisdiction to hear and determine all matters relating to compensation” under the AL Act.[2] Jurisdiction so conferred is exclusive.[3] The Land Court has jurisdiction to hear and decide a proceeding for a declaration about the construction of any legislation, for the purpose of proceedings in which the Land Court has exclusive jurisdiction.[4] It would follow from these provisions that a decision of the Land Court from which a party might appeal to this Court would include a determination of a matter relating to compensation under the AL Act, including a declaration about the construction of legislation for the purpose of proceedings to determine compensation for land resumed under the AL Act. The order of the member of the Land Court might be regarded as satisfying both descriptions.
- [13]Section 65 of the LC Act requires that a notice of appeal against a decision of the Land Court must, within 42 days after the order containing the decision is made by that court, be served on all other parties, and the Registrar of the Land Appeal Court.
- [14]It is at this point convenient to note the provisions of s 57 of the LC Act, dealing with the powers of this Court, as follows:
“57 Powers of Land Appeal Court
The Land Appeal Court may do 1 or more of the following--
- (a)suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
- (b)affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
- (c)make an order the Land Appeal Court considers appropriate.”
- [15]Sections 72 and 21 of the LC Act, taken together, authorise the making of rules for this Court, including “uniform rules that apply to other courts”, which have the effect of subordinate legislation. The Land Court Rules 2000 (LC Rules) are such rules, and, except for Part 6, apply to appeals to this Court.[5] Where the rules do not provide for a matter in relation to a proceeding in this Court, and the UCPR provide for that matter, the UCPR apply, with necessary changes.[6]
- [16]The parties accepted the proposition that s 65 of the LC Act had the effect that if an appeal were not served as required by that section, this Court would lack jurisdiction to determine it. It is unnecessary to examine the correctness of this proposition.
- [17]The LC Rules make no provision for cross-appeals. Rule 754 of the UCPR requires a respondent who intends to contend the decision appealed from should be varied, to file a notice of cross-appeal. For the purposes of this rule, the term “decision” means “an order, judgment, verdict or an assessment of damages”.[7] Rule 755 requires a notice of cross-appeal to be filed within 14 days after the service of the notice of appeal. However, r 756 provides that a failure to give a notice of a cross-appeal does not affect the powers exercisable by a Court of Appeal on hearing the appeal. Finally, reference might be made to r 766, under which, the Court of Appeal may make any order that the nature of the case requires; and may exercise its powers under that rule, even though a notice of appeal has not been given for a particular part of the decision.
- [18]There is no reason to doubt that when an appeal is made to this Court, r 754, r 755 and r 756 of the UCPR apply, references to the Court of Appeal being understood as references to this Court. However, their application depends upon whether or not a respondent wishes to contend that “the decision appealed from” should be varied; and it is unlikely that these rules themselves determine the scope of this Court’s power when deciding an appeal.
- [19]The true source of this Court’s powers in determining an appeal would appear to be s 57 of the LC Act. In addition to a power to amend or revoke the decision appealed against, and to substitute another decision for that decision, this Court also has the power to make an order which it considers appropriate.
- [20]It is first necessary, therefore, to identify the decision appealed from; and to consider whether the orders for which the respondent contends, come within the powers of this Court. It will then be possible to determine whether the provisions of the UCPR on which the respondent relies, are applicable; and whether the effect of s 65 of the LC Act accepted by the parties is an impediment to the course for which the respondent contends.
- [21]The order made by the Land Court consists of five paragraphs. It might, however, be observed that it is the outcome of the preliminary hearing of a single issue. Not surprisingly, the paragraphs of the order are, generally, interrelated. Further, paragraph 4 could hardly be regarded as a determination, or part of the determination, of an issue, and might be treated as surplusage.
- [22]It may be doubted whether paragraph 1 of the order is, or forms part of, a determination of the issue. The issue as formulated assumed that compensation was payable. The conclusion expressed in paragraph 1 depends on the effect of the provisions of the 1994 Act, and does not address the construction of s 18(5) of the AL Act, which was the question raised by the issue formulated by the parties. It is not, at this point, necessary to give further consideration to paragraph 1. It may, however, be noted that it confirms the right of YMCA to claim compensation.
- [23]Paragraphs 2, 3 and 5 are directly responsive to the issue before the Land Court. They are obviously intended to be read together. It is possible to summarise their effect as follows, “on its proper construction, s 18(5) of the AL Act does not preclude YMCA from claiming compensation by reference to the costs incurred by it to relocate its operation to, or reinstate its operation on, another site”. If, notwithstanding the comments made earlier, paragraph 1 of the order is to be regarded as part of the Land Court’s determination of the issue, the summary could be extended to commence with the proposition that YMCA, notwithstanding that the trust referred to in the paragraph has come to an end, might claim compensation under the AL Act¸ followed by the summary set out earlier.
- [24]YMCA’s notice of appeal is in terms directed to paragraphs 1 and 2 of the Land Court’s order. A consequence of its appeal, therefore, is that paragraph 2 of the order might be revoked, or amended in a way adverse to YMCA’s interest; or that another order might be substituted for paragraph 2 of the order of the Land Court.[8] Perhaps for that reason, YMCA’s notice of appeal sought an order affirming paragraphs 3, 4 and 5 of the Land Court’s order. However, the scope of the appeal instituted by YMCA has the consequence, in view of s 57, that the court has the power to make the orders sought by the respondent in their notice of cross-appeal Indeed, because of the interrelationship between paragraphs 2, 3 and 5 of the Land Court’s order, that would be true even if YMCA had not sought an order affirming paragraphs 3, 4 and 5 of that order.
- [25]Section 57(c) provides a power additional to that found in s 57(b). Even if paragraphs 2, 3 and 5 of the Land Court’s order were not interrelated, this provision is wide enough to permit this Court, on appeal, to address those paragraphs not challenged by YMCA in its appeal. The parts of r 766 previously referred to would appear to be consistent with the operation of s 57(c) of the LC Act.
- [26]It follows that it is competent for the respondent to contend for the orders which they seek in their notice of cross-appeal. They are not prevented from doing so, notwithstanding their failure to file the notice of cross-appeal within the time specified as r 755.[9] It also follows from what has been said that s 65 does not preclude them from taking this course.
- [27]If this Court has the power to determine the issues raised by the respondent’s cross-appeal, the appellant did not argue that time should not be extended for the filing of the notice of cross-appeal. Accordingly, it is appropriate to grant an extension of time.
Did the trust of which the appellant was trustee come to an end?
- [28]For the respondent it was contended that “the trust the subject of the 1966 DOGIT” came to an end upon the taking of the land. It was submitted that, the nature of YMCA’s interest in the land being “an estate in fee simple in trust”, the resumption automatically extinguished the trust, with the consequence that the trust ended, and the appointment of the trustee was cancelled.
- [29]It might first be noted that the respondent relied in part on s 12(5) of the AL Act. That subsection provides that, on publication in the gazette of the resumption notice, the land the subject of the notice becomes “absolutely freed and discharged from all trusts”. The obvious consequence of that provision is that on the date when the resumption takes effect, the land ceases to be subject to any trust to which it had previously been the subject. However, the provision applies to all trusts, not simply trusts created under the 1962 Act by way of a DOGIT. In the case of non-statutory trusts, even if the only trust asset were land which was resumed, there can be no sensible suggestion that the trust ceased to exist. Under the general law, when other property is substituted for property held on trust, the other property is itself subject to the trust[10]. Thus, in the case of the resumption of land which was held subject to a trust under the general law, the right to claim compensation becomes a right subject to the trust. It is therefore difficult to see that s 12(5) brings to an end statutory trusts, such as that under which YMCA held the land prior to the resumption.
- [30]Nor do the provisions of the 1962 Act or the 1994 Act lead to that conclusion.
- [31]It is convenient to commence with a consideration of the provisions of the 1962 Act, under which the DOGIT was granted. Section 334 permitted the Governor in Council to grant “in trust” Crown land “for any public purpose”. The section identified the persons to whom the grant was made as “trustees”. That description continued to be used in provisions relating to such grants.[11] The language used in the 1962 Act strongly suggests that the legislation was intended to invoke concepts relevant to a trust, subject to the modifications which appeared in the legislation[12].
- [32]That legislation envisaged that the trustees might grant a mortgage.[13] It is difficult to think that money so raised was the property of the trustees absolutely, rather than subject to trust: it would come to them in their capacity as trustees, and through the exercise of a power which was conferred on them as trustees, and which was exercised in relation to trust property.
- [33]The 1962 Act included provisions relating to the leasing of land held under a DOGIT;[14] and provided that money received as rent would be applied “solely for the purpose of the trust”.[15] The by-law making power extended beyond the land the subject of the trust to “property of every description under [the] control [of the trustees]”,[16] rather suggesting that the trust was not limited to the land itself. Further, the trustees were required to keep proper books and accounts in respect of the trust; and all moneys received on behalf of the trust were to be “applied by the trustees to the purposes for which they [had] been received”.[17] Section 353 permitted the Governor in Council to declare that land granted in trust should revert to the Crown in certain circumstances, and the effect of such a declaration was that the land would be freed and discharged from the trusts. Section 354 then authorised the Minister to order that the trust be wound-up. However that section further provided that, “all property…which immediately before the date of such winding up order [was] vested in…the trustees…shall … be transferred to [and] vested in…” the person appointed to wind up the trust. The provision thus recognised that, notwithstanding the reversion of the land to the Crown freed of the trusts, until a winding up order is made, the trustees remain as trustees, and they continue to hold property (other than the land) subject to trust.
- [34]Although the 1962 Act was repealed by the 1994 Act, the DOGIT was taken to be an equivalent title granted under the later Act;[18] and a trustee of a DOGIT under the 1962 Act was taken to be a trustee of a DOGIT under the 1994 Act.[19] Such grants were made under ch 3, Pt 1, the object of which included to enable unallocated State land to be “granted in fee simple in trust for community purposes”. Again, the persons to whom such a grant might be made are described as trustees. Similar observations might therefore be made about the operation of the 1994 Act, in relation to the concept of a trust.
- [35]The power to make a grant is conferred on the Governor in Council by s 14 of the 1994 Act. The trustee of a DOGIT may mortgage the land, but the amount raised by the mortgage must be used on the trust land and for the purpose for which the trust was granted.[20] The trustee may lease the land, and while the trustee may keep the rent, the money must be spent on the maintenance or enhancement of the trust land unless the Minister otherwise approves.[21] Subject to a yearly income threshold, trustees are required to keep proper books of account meeting certain requirements; or otherwise may be asked by the Minister to give a report of the trust’s financial activities.
- [36]Division 9 of ch 3, Pt 1 provides for the winding-up of such trusts. One circumstance in which a winding-up might occur is if a DOGIT is cancelled, an action authorised by s 38 of the 1994 Act. The Minister might then, by a liquidation notice, appoint a liquidator to wind-up the affairs of the trust.[22] If that is done, then “[a]ll the property of the trust … that, immediately before the day the liquidation notice was published, [was] vested in the trustee, … [vests] in the liquidator”;[23] who must sell the trust property and apply it as provided for in the Act.[24] Again, these provisions make it clear that the trust property is not limited to land; and that the trust does not cease merely because the trustee ceases to hold the land which had been the subject of the DOGIT.
- [37]Both the 1962 Act and the 1994 Act adopted the language of the law of trusts in relation to a grant made under a DOGIT. As has been indicated, the use of such language is apt to result in the application of that body of law (as modified by the statute) to circumstances and obligations to which that law would not otherwise apply,[25] making the description “statutory trust” appropriate.[26] That includes the consequence, when other property is substituted for the property held on trust, that the other property is itself subject to the trust.[27] It is difficult to see why that consequence should not, subject to any statutory provision, apply to a statutory trust, such as one created by the granting of a DOGIT. It would follow that, when under s 12(5) of the AL Act, the estate and interest of a trustee in land which had been the subject of a DOGIT is converted into a right to claim compensation, the claim itself is subject to the trust.
- [38]Although the legislation permitted the creation of trusts for non-charitable purposes, and thus the creation of “statutory trusts”,[28] some trusts created under this legislation might well be recognised as public, charitable trusts under the general law.[29] That provides an additional reason for thinking that trusts which could only be created under the statute were, nevertheless, to be governed generally by the law of trusts, subject to the provisions of the statute modifying that law.
- [39]In arguing to the contrary, the respondent relied on s 90 of the 1994 Act, which makes the provisions of the Trusts Act 1973 (Qld) inapplicable to trusts under ch 3 Pt 1 of the 1994 Act. The point is not particularly strong: it might equally be said that, if trusts under the Act had none of the characteristics or incidents of trusts under the general law, the provision was unnecessary; and the provision does not include an expression sometimes used in legislation, “for the avoidance of doubt” to confirm the respondent’s argument.
- [40]For the respondent it was submitted that on the cancellation of a DOGIT, the trust ends and the appointments of the trustees are cancelled;[30] and that points to the same outcome on a resumption under the AL Act. One difficulty with that submission is that the provisions of the 1994 Act upon which reliance is placed, as has been discussed, do not have the effect that when a DOGIT is cancelled, trustees cease to be vested with trust property. That occurs subsequently, on the appointment of a liquidator.[31] An examination of the legislative provisions reveals that, on cancellation of a DOGIT, it is only in a limited sense that the trust comes to an end. Another difficulty is that, if the submission were correct, there is no provision for the winding-up of the trust. For example, the land may have been subject to a mortgage, and funds may be held at the time of the resumption, obtained from that source. The submissions made on behalf of the respondent would seem to suggest that the funds would then become the property of the trustee absolutely, an unlikely outcome. There is, however, a larger difficulty. The trust was created by a statute. It is not clear how it is said that on resumption of the land, the trust is to come to an end. The effect of the respondent’s submission appears to be that words to that effect should be read into the 1994 Act.
- [41]It follows that the submission made on behalf of the respondent that the trust ceased to exist on the resumption of the land is not accepted.
Section 18(5) of the AL Act and reinstatement
- [42]In essence, the question raised by the issue for preliminary determination is whether, on its proper construction, s 18(5) of the AL Act precludes the appellant from recovering compensation assessed by reference to the cost of reinstating its operation on another site. The effect of the answers given by the learned member was that the legislation did not preclude an assessment made on this basis.
- [43]In challenging the Land Court’s determination of the preliminary issue, the respondent relied in part on a submission that the trust ended on the resumption of the land. That submission has not been accepted. It also referred to limitations on the powers of a trustee, and on a trustee’s right to claim compensation, under the 1994 Act, in other contexts. The respondent also submitted that “the reinstatement contention is without merit”; and would “result in a windfall gain to a former trustee”.
- [44]Neither of the latter submissions is of any assistance in attempting to construe s 18(5). They do not address the issue identified for preliminary determination.
- [45]Reliance on provisions of the 1994 Act dealing with unrelated circumstances is also of no assistance in attempting to construe s 18(5) of the AL Act. The respondent’s submissions deal extensively with the limitations on the powers of a trustee of DOGIT land, in relation to that land. Those matters may be relevant to the assessment of compensation, but it is neither necessary nor appropriate to express a view on that question in this appeal. However, it is difficult to see how they affect the interpretation (as distinct from, perhaps, the application in a particular case) of s 18(5). It follows that they do not affect the outcome of the preliminary hearing.
- [46]The appellant submitted that, although there are limitations on the circumstances where compensation might be assessed by reference to the costs of reinstating a land owner’s operations on another site, the circumstances of the present case permitted that approach. Implicit in that submission is the proposition that s 18(5) of the AL Act did not preclude such an assessment. The appellant’s submission, however, goes beyond the preliminary issue. That is a matter for the Land Court, when assessing compensation.
- [47]Nothing has been identified relevant to the construction of s 18(5) which would suggest that compensation may not be assessed by reference to the costs of reinstating a claimant’s operation in an appropriate case. Nor has anything been identified relevant to the construction of that provision, which would suggest that the provision precludes such an assessment of compensation in the present case.
Further consideration of the order of the Land Court
- [48]It will be apparent that at least one element of the answer given by the Land Court in relation to the issue for preliminary determination is not accepted, relating to the question whether the trust has come to an end. Another element appears simply to be an unnecessary statement of the general effect of the provisions relating to the assessment of compensation, found in the AL Act, not relevant to the determination of the issue. It will therefore seem appropriate to re-formulate the determination of the issue as follows:
“Section 18(5) of the Acquisition of Land Act 1967, on its proper interpretation, does not preclude, in a case where land was held by a trustee under a Deed of Grant in trust under the Land Act 1994, (Qld), the assessment of compensation for the resumption of that land by reference to the costs of the reinstatement of the claimant’s operation to another site.”
Conclusion
- [49]It is intended to invite submissions from the parties as to the form of orders to be made, in light of the conclusions expressed in these reasons.
PETER LYONS J
PA SMITH
MEMBER OF THE LAND COURT
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] s 5(1) of the LC Act.
[2] See s 26(1) of the AL Act.
[3] See s 5(2) of the LC Act.
[4] See s 33 of the LC Act.
[5] See r 3 of the LC Rules.
[6] See r 4 of the LC Rules.
[7] See r 744 of the UCPR.
[8] See s 57(b) of the LC Act.
[9] See r 756.
[10] See Brady v Stapleton (1952) 88 CLR 322, 336-337.
[11] See for example s 339, s 340, s 341, s 342, s 343, s 346 and s 351 of the 1962 Act.
[12] In American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, the Court had to consider the application of the general law to a sub-lease of a reserve created under s 335 of the 1962 Act. The Court pointed out that in general a statute is to be construed in conformity with the general law; though the statute might nevertheless evince an intention to create an exclusive code: pp 682-683. There is no reason to think that the primary proposition does not extend, in an appropriate case, to equity.
[13] See s 337(5), s 351.
[14] See s 343.
[15] See s 346.
[16] See s 339.
[17] See s 341(1) of the 1962 Act.
[18] See s 451 of the 1994 Act.
[19] See s 452 of the 1994 Act.
[20] See s 67 of the 1994 Act.
[21] See s 63.
[22] See s 74 of the 1994 Act.
[23] See s 75.
[24] See s 76.
[25] See for example Fouche v The Superannuation Fund Board (1952) 88 CLR 609, 640-641.
[26] See Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at [67]; Western Australia v Ward (2002) 213 CLR 1 at [241].
[27] See Brady v Stapleton (1952) 88 CLR 322, 336-337.
[28] See Western Australia v Ward (2002) 213 CLR 1 at [240]-[241].
[29] Compare Western Australia v Ward (2002) 213 CLR 1 at [235]-[240]. The parties did not make submissions as to whether YMCA held the land on such a trust.
[30] See s 38E of the 1994 Act.
[31] See s 75 of the 1994 Act.