1905. Ross appeared in the rate books as sole owner of the land. The prescribed valuation and rate notices were annually sent to Ross at an address in Maryborough, who for some years paid the rates. Duncan's interest in the land was sold by the Sheriff under an execution, and subsequently transferred by the purchaser to John Forster Church, who, in January, 1904, became the registered proprietor of Duncan's interest. No notices of valuation or rate notices were ever sent to Church, or his predecessor in title, and neither of them was ever put in the rate book. In June, 1904, the Shire Clerk sent to the District Court Registrar, Maryborough, a certificate of rates unpaid by "the owners of that piece of land, whereof John Forster Church, George Ross, and James Reading are the registered proprietors, etc." No address or occupation of either of them was given, although the address of Ross was in the rate book, and to that extent was known to the Local Authority. The certificate was in the form applicable to a case where the addresses and occupations were unknown. The Registrar, in due course, published the notice of sale, but omitted therefrom all mention that Church, Ross, and Reading were the registered proprietors and of the deed of grant and of Church's certificate of title, and their number, volume, and folio Following upon this, the Registrar issued his warrant of execution against the land, which was advertised for sale, and sold to Joseph Forbes, who subsequently obtained from the District Court. Registrar a transfer, which was lodged in the Real Property Office for registration. About the middle of March last Church saw in the Brisbane Courier a notice by the Registrar of Titles of his intention to dispense with the production of Church's certificate of title for his undivided third share in the land, for the purpose of registering the transfer to Forbes, and following on this, Church lodged a caveat forbidding its registration. Forbes now asks that the caveat may be removed. Several objections have been raised by counsel for the caveator. I think, however, it is only necessary to deal with of them, which is sufficient to decide this case-viz., that the omission to state in the one notice of sale that Church, Ross, and Reading were the registered proprietors of the land described in the deed of grant and certificate F. C. 207 In re CHURCH'S Chubb J. F. C. In re CHURCH'S Chubb J. of title, with their number, volume, and folio, rendered the subsequent sale invalid against the caveator. The form given in s. 243, subsec. 2, contains these particulars. The question then arises, Can a notice omitting such particulars be said to be either in the form or to the effect prescribed ? The statute here directs something to be done in a particular manner or form, but does not declare expressly the consequences of non-compliance. The question then arises, What was the intention of the Legislature, or, in other words, is the provision imperative or directory only? No absolute rule can be laid down for determining the question. The answer must depend on the scope and object of the enactment. What that is seems clear. In the first place, the Local Authority is given a special remedy, in addition to others, by which it can enforce payment of a debt by the sale of the property of the debtor, by a prescribed method. In the second place, while giving the Local Authority that remedy, it gives a protection to the owner of the land by requiring that certain public notice of the proceeding shall be given by a special person before his property is sold. It therefore confers a right or privilege on the Local Authority by which it can, proceeding properly, deprive a person of his property. It has been contended that all that is necessary to be notified are particulars sufficient to enable the owner to identify the land as his, and that if that is done the object of the notice is effected. Cases have been cited in support of this contention. Where the object is merely to give a notice that may be so. The question here is, however, Did the Legislature intend that the public notification of the prescribed particulars should be a condition precedent to the validity of the sale? It is to be observed that the form of the notice of sale as regards these particulars follow exactly the form of the certificates of unpaid rates. Maxwell on Statutes, 3rd Ed., at p. 251, the rule of construction applicable to a case of this kind is thus stated: "It seems that when a statute confers a right, privilege, or immunity the regulations, forms, or conditions which it prescribes for its acquisition are imperative in the sense that non-observance is fatal." The statute here does confer a right or privilege on the Local Authority. The notice of sale cannot be said to be 1905. to the effect prescribed by the Act when it omits all reference to the registered proprietor, the grant, the certificate, the volume, and folio. We think the rule of construction is rightly stated, and are, therefore, of opinion that the Legislature intended the provisions to be imperative, and that the failure to publish the omitted particulars was a non-compliance with the enactment, and therefore fatal to the validity of the sale. This being so, it is unnecessary to consider the effect of s. 245 or the other points raised on behalf of the caveator. The summons will therefore be dismissed with costs. Summons dismissed, with costs. Solicitors for the applicant: Nicol Robinson & Fox, for Morton & Gordon, Maryborough. Solicitors for the caveator: O'Shea & O'Shea. F. C. 209 In re CH CH'S Chubb J. N |