Henry Richard Scutt 1873-1941

[Land Appeal Court. (Before the Commissioners, Messrs. H. A. G. Curry (President), C. Brandis, and W. Houston. The Sydney Morning Herald (NSW: 1842-1954) Friday 30 June 1905 p7 Article. An Important Question. Meaning of "Holder. "Bona Fide Selectors and Mortgages. Henry Richard Scutt appealed again; the disallowance of his a.c.l. application No.1904-12, Bingara. Mr. A. Watt, instructed by Messrs Hughes & Hughes, agents for T. Ryan, Bingara, appealed for appellant, Mr.Pike, Instructed by Messrs Ellis and Button,for respondent. George Brien, another respondent, George Wm. Brooks, was not represented. On November 12, 1904, Scutt, of Eulowrie applied for an a.c.p. of 1307 acres, which was part of a.s.l. of 3070 acres. The application was made with the consent of the Bank of New South Wales, Scutt's mortgagees, and the consent was attached to the application. On the same day George Brien, selector, of Eulowrie, applied for an a.c.l. of 1300 acres, which was also part of the s.l., and was included in the 1307 applied for by Scutt. On the same day Alex Mack applied for an a.c.l. of 130 1/4 acres. In the s.l., and in the area applied for by Scutt and Brooks. On December 5, G. W. Brooks applied for the whole of hes. I. The evidence given before the board in regard to these conflicting applications disclosed closed that Scutt had converted his o.c.p. (his basal c.p.) Into a freehold and the grant, had issued to the bank. Mr. Watt submitted tnat having filled the residence conditions, Scutt ought to be regarded as the holder of the o.c.p, notwithstanding that the grant had issued to the bank. The point whether Scutt came within the disqualification of provisions because his o.c.p was mortgaged had never, it was stated been before tho Court previously Mr Watt, arguing on the questions of beneficial and registered holders, and I tended that "holder" under the 1903 Act meant registered holder. Section 31 of the 1895 Act preserved the right of Scutt's application. Were bona-fide selectors to be disentitled to get land under the 1903 Act because they could only get it by way of mortgage. There were numbers of selectors in the same position as Scutt, who mortgaged his land in 1903, had paid up, and the grant issued. The Court had held that a.c.p. made freehold was to be considered in the same way as a.c.p. The bank could only be considered as the mortagees, and not the holders. By legal shuffling a person might save himself. They might antedate mortgages, and do a lot of things, legal shuffling and jugglery, until they were found out, and then the fat was in the pan. Mr. Watt submitted that the Court would not give a decision that would force men to do any legal shuffling. The bank could become the issue of the grant have transferred back to Scutt his holding, which they held as security, and let him keep it until the grant was issued in his own name. In that way the law might have been evaded. Would the position have been in the slightest degree different? Would the bank have ceased to be mortgagees in Equity? They would still have been nothing more or less than mortgagees, and afterwards the whole of the lands could have been remortgaged to the bank. The bank could not be asked to hand back its only security. Mr. Pike contended that the effect of the grant was to constitute Scutt the transfered within the meaning of the section, or if it did not do so then he was not the holder at the time he made his application. The decision was reserved. Re G. Brien's appeals against the direction of the board in respect of G. W. Brooks. I application No.1904-20, Bingara, and against the disallowance of his a.c.l. No.1904-13. These were conflicting applications for the same land. Kelly and Mack got what they applied for, making their areas 2560 acres. Mr. Pike appeared for appellant. Brien is aged 87, Brien 75, and Brooks and Scutt had also made application. Brien's application was disallowed, mainly on account of his age. Mr. Pike said that the disallowance of Scutt's appeal would not disallow Brien's appeal. The decision was reserved.] [With regard to the appeal by H. R. Scutt against the disallowance of his additional conditional lease application No.1904-42, Bingara, the Court held that the appellant was entitled to make his present application; that the original mortgage to the bank effected by transfer in 1903 should be regarded as a continuing mortgage from the time it was first given up to the present; that the issue of the grant to the bank did not destroy the position in which Scutt stood as mortgagor previously; and that, although the bank went through the form of making a transfer and taking a mortgage of this land on August 19, 1904, this amounted merely to a device which was intended to assist the appellant in his character of applicant for the land, but which neither gave him any advantage nor placed him under any disadvantage. The Court, therefore sustained the appeal, and remitted the case to the board for rehearing in conjunction with the cases Nos. 7373 and 7374 (G. Brien's appeals), the decision in which extended to tho present case. Deposit to be refunded.] [Index to Registers of Firms. Kelaher & Scutt, General Storekeepers, Maitland Street Bingara, 21 Dec 1916. Person Carrying on Business. KELAHER, Fredrick Adolphus; SCUTT, Henry Richard - 27937, [2/8546] [H R S - 68yr., bur: Bingara, NSW, New C of E, A30 - son/Henry R & Mary Ann; h/Maud; father.]