No. 3517.
An Act to approve and ratify and provide
for carrying out an Agreement between
Alton a Beach Estates Limited the
Premier of the State of Victoria and
Arthur Rickard and Co. Limited
respecting the Transfer to the State
of the Altona Railway and for other
PurPoses
[5th October, 1927.]
preamble,
schedule
"VTTHKH KAS Altona Beach Estates Limited (a company
VV
incorporated in accordance with the law of New
South Wales) the Premier of the State of Victoria for and
on behalf of and duly authorized hy the Government of the
said State and Arthur Packard & Co. Limited (a company
which is also incorporated in accordance with the law of
New South Wales) have entered into the Agreement a
copy of which is set out in the Schedule to this Act: And
whereas it is desirable to approve and ratify the said
Agreement and to provide for carrying out the
provisions thereof: Be it therefore enacted by the
King's Most Excellent Majesty by and with the
advice and consent of the Legislative Council and
the
18 GEO. V.]
I
€
1
Altona Railway.
[No. 3517
69
the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as
follows (that is to say):—
. This Act may be cited as the Altona Railway Act short title.
1927.
2 . In this Act unless inconsistent with the context or Interpretation.
subject-matter—
u
Commissioners" means The Victorian Hail ways Com- " Commlamissioners constituted as provided by the Railways 3ionors."
Nos. 2710 Ac.
Acts.
u
Company " means Altona Beach Estates Limited.
" Company."
u
The Agreement" means the Agreement a copy of The
" Agreement."
which is set out in the Schedule to this Act.
Schedule.
u
The
railway lands" means the lands more par- The "railway
lands."
ticularly described in sub-clauses 2, 3, 4 and 5 of
Clause II. of the Agreement,
The " said railway " means the railway which has been The"Baid
railway."
constructed on the lands coloured red on the plans
referred to in the Agreement, and includes the
stations bridges approaches buildings culverts
fences gates machinery telegraph and telephone
wires instruments and other telegraphic and telephonic works and apparatus station fittings and
furniture stores plant materials and all other
property works conveniences and effects of every
land which at the date of the Agreement were
vested in or belonged to the company and formed
part and parcel of or were reputed to form part
and parcel of the said railway.
3 . The Agreement is hereby approved and ratified
and shall be deemed and taken to be part of this Act and
anything necessary for carrying out the provisions thereof
may bedone or suffered by the Minister the Commissioners
or the company as the circumstances of the case require.
4 . (1) The Minister shall direct the company to transfer
the said railway and the railway lands to the Commissioners.
(2) Upon the said transfer being effected the said railway and the railway lands and the inheritance thereof in
fee simple shall be and be deemed to have been vested in
the Commissioners as on and from the first day of October
One thousand nine hundred and twenty-four for the
purposes of the Railways Acts, but subject nevertheless
to the provisions of the Agreement.
(3) All
Ratification of
Agreement.
Railway and
railway lands to
be transfer! c d
to the
Commissior.ure.
Railway and
railway lands
to vest in (lie
Commissioners.
Noa. 2716, 2814,
2885, 2042,
2951, 3011,
3039, 8111,
3227, 3484..
Altona Railway.
[No. 3517
70
18 GEO. V.J
Laws by-laws
and regulations
__
to be in iorco.
(3) All laws by-laws and regulations for the time being
m force o n 0 r in respect of the railways vested in the
Commissioners shall so far as the same are respectively
capable of being applied be in force on and in respect of
the said railway.
Restrictions on
use of lands
5- The covenants and agreements by the company
contained in clauses V. VII. and VIIL of the Agreement
shall attach to and run with the lands of the company
which are mentioned in the said clause V., and shall bind
the said lands in whosesoever hands the same shall be, but
the owner and occupier for the time being of the said lands
shall subject to the provisions of clause VI. of the Agreement be at all times entitled to the benefit of the said
clause VI.
"gjgjf
railway lands.
Saving.
Compensation
for additional
lands taken by
6. Notwithstanding anything contained in the Lands
thecommis- Compensation Acts the amount of purchase money or
liK.10 be
compensation payable for or in respect of any land which,
Nos. 2678,3i4i. during the period of five years next after the commencement of this Act, is purchased or taken by the Commissioners for or is used by the Commissioners in connexion
with or is likely to be injured in or prejudicially affected by
the execution of any works on the said railway shall not
exceed the value of the land on the twenty-ninth day of
March One thousand nine hundred and twenty-six.
Commissioners
not bound to
fence.
7. On the said railway the Commissioners shall not be
bound to erect or to contribute to the erection of anv
dividing or other fence or to erect gates or to employ gatekeepers at any public or occupation road-crossing nor shall
the Commissioners be liable for any damage which may be
caused by the absence of gates or of gatekeepers at any
such crossing or by reason of the said railway not being
fenced in or fenced off.
Audit and Land
Acts not
affected.
8 . Nothing in this Act shall affect or in anv manner
alter or varv anv of the provisions contained in the Audit
Acts or in any Act relating to Crown lands.
SCHEDULE.
18 GEO. V.]
Alkma Railway.
[No. 3517
SCHEDULE.
made the Twenty-ninth day of March
One thousand nine hundred and twenty-six Between ALTONA BEACH
ESTATES LIMITED a company duly incorporated in accordance with the
law of the State of New South Wales and carrying on business in the
State of Victoria at 98 Elizabeth-street Melbourne (hereinafter called
" the Company " which expression where the context admits or requires
shall be deemed to extend to and to include its assigns) of the first part
the HONORABLE JOHN ALLAN in his capacity as the Premier of the State
of Victoria and for and on behalf of and duly authorized by the Government of the said State (hereinafter called " the Minister " which expression
where the context admits or requires shall be deemed to extend to and
to include the successors in office and assigns of the Honorable John
Allan and the officers servants and agents of the Government of the State
of Victoria) of the second part and ARTHUR EICKARD AND CO. LIMITED
a company which is also duly incorporated in accordance with the law
of New South Wales and has its registered office at 84B Pitt-street Sydney
(hereinafter called " the Guarantor " which expression where the context
admits or requires shall be deemed to extend to and to include its assigns)
of the third part WHEREAS the Company is the owner of the lands delineated
and colored red blue yellow purple and brown on the plans certain copies
of which have been sealed by the Company and the Guarantor and
deposited in the office of the Minister and other copies of which have
been signed by the Minister and deposited in the office of the Company
AND of the railway which has been constructed on the said lands colored
red on the said plans AND WHEREAS pursuant to the provisions of an
agreement made the Twenty-eighth day of November One thousand
nine hundred and seventeen between the Company of the one part and
The Victorian Pvailways Commissioners of the other part the said The
Victorian Kailways Commissioners (who are hereinafter referred to as
" the Commissioners ") entered into possession of that portion of the
said railway situate between the points marked " A " and " B " on the
said plans and proceeded to use the said portion of the said railway for
the purpose of working the train service mentioned in the said agreement
AND WHEREAS it is provided in the said agreement that in the event of
there being any deficiency between the revenue derived by the Commissioners from their user of the said portion of the said railway and the
actual costs incurred or moneys expended by them in working the said
wain service under the guarantee of the said Company which was
terminated in the manner prescribed by the said agreement as on the
First day of October One thousand nine hundred and twenty-four the
Company shall on demand pay the amount of such deficiency to the
Commissioners AND WHEREAS there is now due and owing by the Company
to the Commissioners pursuant to the provisions of the said agreement
the sum of Seven thousand two hundred and eighty-inne pounds three
shillings and sevenpence AND WHEREAS the Company is unable immediately to pay the said sum to the Commissioners but has represented
to the Minister that if the Government of the State of Victoria were to
acquire the said railway and vest the same in the Commissioners for the
purposes of the Railways Acts of the said State it could arrange for the
provision of funds which would enable it to pay to the Commissioners
MEMORANDUM OF AGREEMENT
SCHEDULE
18 GEO. V.]
Altona Railway.
[No. 3517
SCHEDULE—continued.
in the instalments hereinafter provided for the said sum of Seven thousand
two hundred and eighty-nine pounds three shillings and sevenpence and
interest thereon calculated at the rate of Six pounds per centum per annum
for the period commencing upon the Eighteenth day of November One
thousand nine hundred and twenty-four (being the date upon which an
account of the amount due to them pursuant to the provisions of the
said agreement was last rendered to the Company by the Commissioners)
and ending upon the date of the execution of this agreement AND WHEREAS
to facilitate the acquisition of the said railway by the said Government
the Company has offered to transfer and/or surrender the said railway
and the lands and property hereinafter more particularly described to
His Majesty King George the Fifth or as the Minister may direct provided
that the Minister agrees that the Commissioners will operate and continue
to operate the said railway as portion of the Melbourne suburban system
and will with all reasonable despatch proceed to convert the said railway
so that electricity may be used as a motive power thereon AND WHEREAS
the Minister has agreed to accept the Company's offer upon condition
that the Company pays the said sum together with interest thereon as
aforesaid to the Commissioners in the instalments hereinafter mentioned
and provides a surety for the due and punctual payment of the said
instalments AND WHEREAS the Company has requested the Minister to
accept the Guarantor as a surety as aforesaid and the Minister has agreed
SO t o d o NOW THESE PRESENTS WITNESS :—
I. THE Company shall:
1. Immediately upon the execution of this agreement pay unto
the Commissioners:—
(i) the sum of Three thousand six hundred and forty-four
pounds eleven shillings ninepence and one-halfpenny
being a moiety of the said sum of Seven thousand
two hundred and eighty-nine pounds three shillings
and sevenpence:
(ii) interest calculated at the rate of Six pounds per centum
per annum on the said sum of Seven thousand two
hundred and eighty-nine pounds three shillings and
sevenpence for the period commencing on the
Eighteenth day of November aforesaid and ending
on the day of the execution of this agreement.
2. Pay the other moiety of the said sum of Seven thousand two hundred and eighty-nine pounds three shillings and sevenpence
to the Commissioners in three instalments of One thousand
#
pounds each and one instalment of Six hundred and fortyfour pounds eleven shillings ninepence and one-halfpenny
the said instalments to be paid at regular half-yearly intervals
reckoned from the date upon which the payments provided
for in sub-clause 1 of this Clause are made.
3. Pay interest to be calculated at the rate of Six pounds per centum
per annum on the balance of the other moiety aforesaid from
time to time remaining unpaid until the whole of the said
moiety shall be paid the said interest to be paid on the said
half-yearly days and to be computed in the first instance
from the date upon which the payments provided for in
sub-clause 1 of this Clause are made and thereafter from the
last preceding half yearly day.
SCHEDULE
I
18 GEO. V.]
Altana Railway.
[No. 3517
m
SCHEDULE—continued.
U
II
§
II. UPON the payment by the Company to the Commissioners of the
sums mentioned in sub-clause 1 of Clause I. hereof the Company in consideration of the agreement by the Minister hereinafter contained will
transfer and/or surrender unto His Majesty King George the Fifth or as
the Minister shall direct:—
1. ALL THAT the said railway including the stations bridges approaches buildings culverts fences gates machinery telegraph
and telephone wires instruments and other telegraphic
and/or telephonic works and apparatus station fittings and
furniture stores plant materials and all other property works
conveniences and effects of every kind which at the date of
this agreement were vested in or belonged to the Company
and formed part and parcel of or were reputed to form part
and parcel of the said railway.
2. The surface and down to a depth of Fifty feet below the surface
of the lands upon which the said railway is constructed
which lands are colored red on the plans.
3. At the option of the Minister to be exercised within Twenty-four
calendar months of the date of the execution of these
presents:—
(i) the surface and down to a depth of Fifty feet below the
surface of the lands colored yellow and brown on
the plans which lands may hereafter be required
for the construction and maintenance of an extension of the said railway ; or
*
(ii) the surface and down to a depth of Fifty feet below the
surface of the lands colored purple and brown on
the plans which lands may hereafter be required
for the construction and maintenance of portion of
an extension of the said railway.
4. The surface and down to a depth of Fifty feet below the surface
of the lands colored blue on the plans which lands may
hereafter be required in order to permit of the traffic on the
said railway being more efficiently worked.
5. The surface and down to a depth of Fifty feet below the surface
of any other lands which are vested in or belong to the
Company and are occupied or used by it or by the Commissioners in connection with the said railway.
AND the Minister on behalf of His Said Majesty will accept a transfer
and/or surrender of the said railway property and lands and will do what
lawfully may be done by him towards vesting the same in the Commissioners for the purposes of the Kaiiways Acts AND he hereby agrees with
the Company that the Commissioners will operate and continue to operate
the said railway as portion of the Melbourne suburban system and will
with all reasonable despatch proceed to convert the said railway so that
electricity may be used
motive power thereon.
,*
*j
III. THE Company shall:—
1. Forthwith prepare and deliver to the Crown Solicitor for the State
of Victoria :—
(i) a full and complete inventory of the personal property
owned by it and used by it or by the Commissioners
in connection with the said railway :
SCHEDULE
18 GEO. V.]
Altona Railway.
[No. 3517
SCHEDULE—continued.
(ii) full and complete particulars of the several stations
bridges approaches buildings culverts fences gates
telegraphic and/or telephonic works or apparatus
lines of way and other works and appliances in the
nature of fixtures which are owned by the Company
and form part and parcel of or are reputed to form
part and parcel of the said railway:
(iii) abstracts or other sufficient particulars of its titles to
all of the lands which it has hereby agreed to
transfer and/or surrender together with all surveys
and surveyor's description of such lands which
it may have in its possession.
2. Produce to the said Crown Solicitor all deeds and documents
required to be produced in support or in verification of its
title to such lands.
IV. THE estate in the said lands which the Company shall by this
agreement be bound to transfer and/or surrender shall be an unencumbered
estate of fee simple in the whole of the said lands as above described but
only insofar as the same may be comprised in the present titles held by
the Company PROVIDED THAT the provisions of this Clause shall not apply
to any obligation created by an exception reservation covenant or condition
contained in the original Crown Grant of any of the said lands or to the
covenants and conditions contained in Instrument of Transfer registered
No. 403084 or to any easements subsisting over or upon or affecting the
said lands or to any obligation subject to which the Minister may decide
to accept a transfer and/or surrender of the said lands.
V. THE Company shall retain for its own use all other parts below
Fifty feet of the said lands but subject always to the following condition and
the Company (subject to the provisions of Clause IV. hereof) hereby covenants with the Minister in manner following that is to say that it will not use
for actual mining the lands underlying the said depth of Fifty feet of the
said lands to be transferred and/or surrendered as aforesaid or the other
lands belonging to the Company and extending for Three chains laterally
on either side of the said lands to be transferred and/or surrendered.
VI. IT is hereby agreed that in order to provide efficient means of
communication between mine workings of the Company situate on either
side of the lands mentioned in Clause V. hereof the Company may construct
and maintain tunnels ways or other works at any working level in such
lands below Fifty feet PROVIDED THAT :—
1. Tunnels ways or other works in the lands belonging to the Company and underlying the said lands to be transferred and/or
surrendered shall not exceed Twenty feet in width.and Ten
feet in height and shall be adequately supported in tlie middle
and that two such tunnels ways or other works shall not
be placed at a less distance than One chain and half a chain
laterally from each other.
2. Tunnels ways or other works in the lands belonging to the
Company and _ extending for Three chains laterally on either
side of the said lands to be transferred and/or surrendered
SCHEDULE
18 GEO. V.]
Altona Railway.
[No. 3517
SCHEDULE—continued.
shall not exceed Twenty feet in width and Ten feet in height
and that two such tunnels ways or other works shall not be
placed at a less distance than One chain and half a chain
laterally from each other.
3. Upon any such tunnel way or other work being abandoned or no
longer required by the Company it shall be properly and
securely stowed up in accordance with the most approved
practice of mining engineers and in such a way as to prevent
subsidence of the lands above it.
VII. THE Commissioners and their officers with or without surveyors
miners workmen and others shall be entitled at any reasonable time to
enter upon the lands of the Company more particularly referred to in
Clauses V. and VI. hereof in order to ascertain if the Company is fulfilling
the obligations imposed upon it by the said Clauses and for that purpose
they shall be entitled to use free of charge the pits shafts tunnels ways
and other mining works of the Company which it will be necessary for them
to use in order to obtain ingress to and egress from the said lands and any
mining plant and machinery of the Company which is in or upon or is used
in connection with any such pit shaft tunnel way or other mining work and
to have any assistance from the miners workmen and others employed
by the Company which is in the circumstances of the particular case
necessary and reasonable.
VIII. THE Company shall not agree to assign its lands or any part or
parts thereof (which are more particularly referred to in Clauses V. and
VI. hereof) until it has given unto the proposed assignee notice of the
existence of the covenants and agreements by it contained in the said
Clauses and in Clause VII. hereof AND in every deed or other document
containing an agreement by the Company to assign the said land or any
part or parts thereof or by means of which effect is sought to be given to
any such agreement it shall be expressed that the agreement therein made
or sought to be given effect to shall be subject to the obligations and
restrictions created by the said covenants and agreements.
IX. I F at any time any question dispute or difference shall arise
between the Company and the Minister touching :—
1.
2.
3.
4.
The true intent or construction of these presents ; or
The carrying into effect of any of the clauses hereof ; or
Any of the incidents or consequences hereof ; or
Any breach or non-performance or alleged breach or nonperformance of any of the provisions hereof with the
exception of the provisions of Clauses I. and X. hereof; or
5. Any liability damages losses costs or expenses arising out of
any such breach or non-performance aforesaid; or
6. Any claim or demand of whatsoever nature in anywise relating
to the premises
such question dispute or difference shall unless the parties agree in the
appointment of a single arbitrator be referred to two arbitrators one to
be appointed by each party hereto and such arbitrators shall before they
enter upon the determination of the matters referred to them nominate and
appoint by writing under their hands an umpire to decide any matters on
SCHEDULE
18 GEO. V.]
Altona Railway.
[No. 3517
SCHEDULE—continued.
which they shall differ or which shall be referred to him by them and the
Arbitration Act 1915 of the State of Victoria and any statutory modification
or re-enactment thereof shall apply to any such arbitration.
X. I N consideration of the premises the Guarantor to the intent that
the guarantee liereby given shall be construed as a continuing guarantee
hereby covenants and agrees with the Minister that if the Company shall
fail or neglect to pay punctually unto the Commissioners the sums mentioned in Clause I. hereof or any of them or the interest mentioned in the
said Clause, or any part thereof the Guarantor shall from time to time within
Fourteen days of the service upon it of a notice in writing under the seal
of the Commissioners setting out the amount which the Company has failed
or neglected to pay unto the Commissioners pay unto the Commissioners
the amount in the particular notice set out.
XI. ANY notice required to be served upon the Guarantor pursuant
to the provisions of Clause X. hereof shall be sufficiently served if addressed
to the Guarantor and if forwarded by a registered letter addressed to it at
its last registered office in the said State of New South Wales.
XII. THE liability of the Guarantor hereunder shall not be in any way
released or discharged by reason of any time or other indulgence being
granted by the Minister to the Company whereby the time or mode of
payment by the Company of the whole or of any portion of the moneys
referred to in Clause I. of these presents may be altered or involved.
XIII.
NOTHTNG
in these presents contained shall be construed :—
1. So as to affect the liability of the Company to pay unto the
Commissioners the said sum of Seven thousand two hundred
and eighty-nine pounds three shillings and sevenpence or so
as to prejudice in any way the rights of the Commissioners
under the said agreement of the Twenty-eighth day of
November One thousand nine hundred and seventeen.
2. As imposing upon the Minister or upon the Commissioners an
obligation-to operate the said railway in perpetuity regardless
of the fact that its operation involves the Government of
Victoria or the Commissioners in a loss but on the contrary
the Minister or the Commissioners (as the case may require)
shall be entitled to close the said railway if the Commissioners
after having considered all of the circumstances of the case
in accordance with the practice ordinarily followed by them
in dealing with a railway which is being worked at a loss
are of the opinion that the said railway should be closed.
XIV. SHOULD the Commissioners at any time within a period of Ten
years from the date hereof cease to operate the said railway as portion
of the Melbourne suburban system of the Victorian State Railways or
fail to use or continue to use any portion of the lands described in paragraphs 2 and 3 of Clause II. hereof then in the former of the said caseg
the Minister on behalf of His Majesty shall forthwith transfer or procure
a re-transfer to the Company of the railway property and lands aforesaid
and in the latter of such events shall transfer or procure a re-transfer to
the Company of the portion of the said lands which the Commissioners
have failed to use or to continue to use.
SCHEDULE
18 GEO. V.]
Altma Railway.
[No. 3517
SCHEDULE—continued.
whereof the parties hereto have executed these presents
the day and the year first ahove written.
IN WITNESS
THE COMMON SEAL of ALTONA
BEACH ESTATES LIMITED was
(
hereunto affixed by Arthur
Lancelot Rickard and Arthur f
Bernard Davies two of the
Directors of the said Company
in the presence of
E. A. LIVI, Secretary.
SIGNED SEALED and
ARTHUR L. RICKARD
A. B. DAVIES
(L.S.)
DELIVERED^
by the Honorable John Allan }•
JOHN ALLAN
in the presence of
J
H. T. VICKERS, Secretary to the Premier.
THE COMMON SEAL of ARTHUR
RICKARD AND CO. LIMITED
was hereunto affixed by its
Attorneys Arthur Lancelot
Rickard and Theophilus Corbett in the presence of
F. R. SNOWBALL, Secretary.
ARTHUR L. RICKARD
T. CORBETT
(L.S.)
(L.S.)
77