Cooper v Stuart

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Citation: Cooper v Stuart (1889) 14 App Cas 286.

This information can be found in the Textbook: Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 175-7.


Background facts

  • Governor made a land grant in 1823 whilst saying he could reacquire it at a later date for the purposes of the public.
  • The Plaintiff [Cooper], the successor in title to the original grantee, argued that this clause is invalid, as it goes against the law against perpetuities.
    • The law against perpetuities basically means that once you give away property, you relinquish all control and you cant stop the next person from controlling that property.
  • The Defendant [Stuart] argued that the law against perpetuities was not part of the NSW law back then.

Legal issues


  • The court iterates that NSW was a settled colony.
  • Therefore, the law of England is immediately in place.
  • However, it is only in force in so far as it is applicable to the circumstance of an infant colony.
  • Some principles are not received by the colony when it is at its infant stages, because they do not yet suit it. As the colony grows and prospers, those principles of English law which were unsuitable before, would gradually be introduced.
  • Ina new colony, a government needs to give away land grants. But it also needs to reserve space for public use. In its infant stages, it is impossible to tell which spaces will be needed for public use.
  • Therefore, the law against perpetuities was unsuitable to the colony in its infancy, and was not in effect in 1823.
  • Appeal dismissed, the Plaintiff loses.


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