CO129-335 - Governor Nathan - 1906 [8-10] — Page 49

(C O P Y)

Opinion of Sir Henry Berkeley of 7th.

August, 190S.

46

Under paragraph 4 of the Circular of December 1894 lands

and buildings surrendered to the Colonial Government by the far Department are to be sold in the "open marxet" and "the proceels"

of the sale are to be paid into the Colonial freasury to a special

account to the debit of the Colonial Government, that which is to

be paid into the Treasury is the sum paid by the purchaser at the

sale in open market, i.e. the proceeds of the sale. In the words of

the paragraph 4 "the proceeds" of the sale are to be paid into the

Treasury and debited to the Colonial Governrent. The proceels of

a sale are the moneys actually realised by the sale in the pre-

sent case the proceeds would be what is locally called the

"premiums" paid to Government for the Crown Lease of the lands the

leasehold interest in which has been sold. It is therefore only

the premium, that is to say, the proceeds of the sale which is to

be paid into the Treasury and debited to the Colonial Government.

Under paragraph 4 the War Department have no claim to rent in res-

pect of the surrendered lands, for the Department has not under

that paragraph, as it has under paragraph 9 when the Government

retains any land surrendered, a right to regard such lands as if

they were War Department lands in fee simple. It is the right, con-

ferred by paragraph 6, to be credited with the market value of the

fee simple which entities the War Department to capitalize rent

plus premium in cases coming under that paragraph. No such right

exists under paragraph 4: therefore in cases coming under that paragraph the War Department is entitled to be credited with the sum of money actually realised by the sale in open market and

nothing core.