Section 255 Kent vs Torrens – Part 1

The Wikipedia article: British Colonisation of South Australia

provides details of the planning that went into the establishment of the Colony many years before the colonists arrived in 1836. A key idea was that the money required to fund the settlement and subsidise the passage of non-convict labour could be raised by the sale of land in some form.

By 1834, the South Australian (Foundation) Act has been passed and a new body called the South Australian Colonisation Commission established to oversee the governance of the proposed colony. The authority associated with the Commissioners was to be shared with the Colonial Office, a British government department.

Ten Commissioners were based in London with an additional one appointed by the Colonial Office and George Barnes appointed as treasurer, making a total of twelve (as listed in the Wikipedia article). Barnes is not always listed as a commissioner and very little appears to be known about him but his name appears in financial reports as shown below.

In addition, the Resident Commissioner and several other officers (including a local Resident Treasurer), were to be located in the Colony. Specifically, the Commissioners were responsible for the sale of land, the emigration fund and the appointment of a treasurer, surveyors and other personnel.

Land sales were to be based on surveys, maps were to be made available prior to sale and the land was to be sold at a uniform rate per acre. Clearly, not all of these requirements could be met for the original (preliminary) purchases which were made before the first surveys and settlement.

The initial sales were for an eighty acre country section and a one acre town section costing 81 pounds or a pound an acre but the price was later reduced to 12 shillings per acre. Those purchasers who had paid the old price had their section allocation increased to 135 acres. Four hundred and thirty seven preliminary sections were sold to raise the money required to commence the emigration fund.

The map below shows the city of Adelaide and surrounds as surveyed by Colonel Light (this version published in 1839) and used to allocate most of the preliminary country sections . What is now Kent Town is shown as Section 255 and covers 134 acres (circled on right). The other section circled on the left is Section 46, the section originally selected by Dr Kent in London before he left for the Colony.

1839 Version of Colonel Light’s original  map showing farm land sections

Both Section 255 and Section 46 have G Barnes as the owner and the Wikipedia article referenced above lists a G Barnes as the (London-based) treasurer of the Colonisations Commission along with numerous newspaper references (see above). As well, Light’s earlier map of the town sections shows five town acres allocated to George Barnes so  it is likely that they are the same person. It appears that the owners of pre-purchased sections or their agents were given priority access to the newly-surveyed sections and the rest were then auctioned. There may have been a ballot or the allocation may have been left to the Surveyor-General and the Resident Commissioner.

Dr Kent was not happy with his original choice, Section 46 but was satisfied that Section 255 would suit his intention of establishing a brick-making factory with Greenhill Creek (now called First Creek) a better source of water than the downstream part of the River Torrens that flows through Section 46.

By the time Dr Kent arrived in the Colony in April 1840, Lt-Colonel Robert Torrens (who had been chairman of the Colonisation Commission) was either acting as the agent in London for G Barnes or Barnes was acting as a front for Torrens (since he was disallowed from pursuing any pecuniary interests in the colony). Colonel Torren’s son, Robert Richard (R R) Torrens arrived in 1841 and acted as his father’s local agent from that time.

In 1851 Dr Kent took legal action to try to establish his right to ownership of Section 255 (later to be known as Kent Town). There are references to Barnes in the proceedings but theses are not enough to clarify his involvement.

South Australian Register (Adelaide, SA : 1839 – 1900)   Sat 3 May 1851



Thursday 1st May.

[Before Mr. Justice Crawford.]

Kent v. Torrens.

Mr. Mann moved on an affidavit of Benjamin Archer Kent, plaintiff, for an order of the Court that a substituted service of subpoena should be sufficient as the defendant was not within the jurisdiction of the Court, and for a common injunction restraining alienation of the land, the subject of the suit, until an answer be filed.

The learned gentleman stated that the bill was filed on the 17th of last month and set forth the original contract on which the plaintiff’s right was based. The proposition which he intended to submit to His Honour was, that substituted service was allowed on a person acting under power of attorney, when the attorney held from his principal power to act in respect to the subject matter before the Court. (Horneby v. Holmes, 9th Jurist, 796, Bromley v. Bank of England, Webb v. Hare, Hobhouse v. Courtney, and other cases.)

The learned gentleman recapitulated the substance of the reports cited, and argued that his case was stronger, as there could be no doubt the defendant, Robert Torrens, was never within the jurisdiction of the Court, and Robert Richard Torrens had acted for years as his attorney, collecting rents, &c. A recent decision of the Vice Chancellor ruled, that when an attorney held a special power in the matter in dispute, a substituted service could be allowed.

His Honour — Will you be able to bring your case within that description ?

Mr. Mann said he would do so, and that he was confident he would obtain an order, if His Honour was with him, that when a special power was held by an attorney relative to the matter in dispute, a substituted service might be ordered, but he admitted a general power-of-attorney would not be sufficient. He would, as briefly as possible, refer to the case to show that Mr. Robert Richard Torrens had acted as special agent for the defendant from 1841.

In 1839, Dr Kent was induced to enter into a negotiation in London with Colonel Torrens for the occupation of one of his Preliminary Sections (46), which was described by one Stephen Blunden as having on it the best clay in the world for the formation of bricks and tiles, for which manufacture Dr Kent had taken out a patent. It was further stated by Blunden that a large navigable river ran by the section, which section Dr Kent agreed to take on lease for five years with a right of pre-emption, and a proviso that should the section not answer the purpose for which it was taken Dr Kent should have power to determine the lease by the forfeiture of £200, paid by him as rent in advance to Colonel Torrens.

Dr Kent arrived in this colony in the month of April, 1840, and found Osmond Gilles, Esq, agent for Colonel Torrens, and was by him shown over Section 46, when he ascertained that Blunden’s statement of the quality of the clay was incorrect, and if the ‘ big river’ had ever been there it had flowed away.

Dr Kent apprised Mr. Gilles of his intention to forfeit the £200, upon which that gentleman drove him to another section (255), which appeared well adapted for his purpose, as Mr. Gilles had made 172,000 bricks upon it.

Dr Kent expressed his willingness to take Section 255 instead of Section 46, and Mr. Gilles gave him possession of it previously charging him £102 10s., the amount expended on the section on Colonel Torrens’s account.

Dr Kent immediately erected on the section a wooden house, with outbuildings, and laid out a garden at an expense of £600; of all which proceedings he duly apprised Colonel Torrens, who wrote a reply expressing a desire to meet all his wishes, or even to allow him to relinquish the agreement altogether and return the deposit— (Dec. 1st, 1840.)

Mr. Mann submitted that letter recognised the agency of Mr. Gilles. On the 31st March, 1841, Robert Richard Torrens, son of the defendant, arrived in the province; some negotiation took place between him and Dr Kent, who finally elected to retain Section 255 on a lease for 14 years, at a rent of £134 per annum, and, in consideration of the expense of fencing and Mr. O. Gilles’s claim, rent not to commence till 25th March, 1844, with a right of pre-emption during the term, or at its close, for the sum of £2,500, and Mr. R. R. Torrens, on the 3rd of May, 1841, undertook, under his hand, to execute the necessary deeds when the power-of-attorney, which he looked for daily, should arrive from his father.

A letter, dated August 27th, from Colonel Torrens to R. R. Torrens, refers to a letter from Dr Kent, dated July 12th, 1841, containing the following passage:

— ‘ I am willing, should Kent be a really solvent tenant, to ratify this agreement, and to grant him a lease of the section on the terms you proposed.’

Mr. Mann remarked that the defendant made a mistake in that letter as to the agreement being for seven, 14, or 21 years, whereas it was for 14 years alone but then the time that elapsed between the receipt of Dr Kent’s letter and that containing Colonel Torrens’s reference to it, would account for the possibility of such an error where a memorandum was not kept. The learned gentleman next called attention to the power-of-attorney and cited a passage from a later letter addressed to the defendant, where he recited some of the restrictions to the power of R. R. Torrens, his agent, none of which affected the agreement with the plaintiff.

His Honour — The bill, then, is for a specific performance of the contract.

Mr. Mann — Yes, your Honour, and for other purposes.

His Honour — Is the section 255 now referred to the subject matter of the suit?

Mr. Mann — It is, your Honour and as the agreement was acted on by both parties, I submit it is binding. It might possibly occur that the other party would set up a waiver to that agreement but he (Mr. Mann) would contend that it established his client’s right, who had, on the faith of his original agreement, and in reliance on the authority — and he might say honour — of the defendant’s son, expended, in the first place, £102 10s. for former improvements, on a house and garden £600, in mills for the manufacture of bricks, &c, £400, in adapting the mill to corn-grinding £300, and in subsequent improvements not less than £300 more.

The learned gentleman went into a long detail of interviews and correspondence between Dr Kent and Mr R R Torrens, from which it appeared that Mr J H Richman, on the 20th March, 1846, prepared an agreement for a lease of section 255 for the terms of 21 years, at the yearly rent of £134, payable half-yearly, with power of pre-emption at any time during. the term for £2,500.

There was, however, a most extraordinary provision introduced to the effect that if Colonel Torrens had departed this life before the execution of the lease, or was, from any cause or contingency whatsoever, prevented from such execution, the demise should only hold good for seven years at a rent reduced by 25 per cent, per annum.

This agreement was signed by R R Torrens, as attorney for Colonel Torrens on the one part, and Dr Kent on the other part; witness, J. H. Richman, solicitor. The plaintiff adhered to the terms strictly and paid the rent (£67) regularly every half-year. On the 29th Sept, 1847, Dr Kent transmitted in a letter, a cheque for £76, and requested that a receipt might be given for that amount, as also for the preceding half-year’s rent, which receipt had not reached him, and enquiring earnestly for the long-expected lease.

He next received the following communication: —

‘ St. Clair, April 17th, 1849

‘ Dear Sir— I beg to acknowledge the receipt of your note, enclosing a cheque for £76, as rent up to the 25th ultimo.

I have, at the same time, to intimate to you, that I have received a letter from Colonel Torrens, dated 28th November, relative to the disposal of his property there, intimating that, in accordance with my advice, he had finally decided on refusing to give you a lease for seven, 14, or 21 years, at £l34 per annum, with right of purchase at £2,500, and had adopted and confirmed the alternative given him in your agreement, signed between us, viz, that you should have the section for seven years, and receive back the sums paid in excess of £100 per annum— the rent agreed on for the shorter period. My father tells me that he had intimated this decision to the gentlemen employed by you to negotiate with him.

The management of my father’s affairs here is now in my hands, and I am willing to treat with you for sale or lease of either portion, or the entire section but would not feel disposed to entertain any proposition for sale except for cash, or any proposition for a lease which included a right of purchase.

Would you be so good as to name a day when it would be convenient to you that I should visit and examine the property.

‘ I am, &c,


‘Dr Kent.’

Dr Kent’s reply, after recapitulating the substance of the above, went on —

‘ I beg to remind you that the agreement signed between us, to which you refer, distinctly states the duration of the lease, with the amount of purchase money; also that the clause containing the alternative of seven years was inserted because it was deemed advisable that a conveyance of the estate should be executed from Mr Barnes to Colonel Torrens before the lease itself from Colonel Torrens to me was executed, and to provide for the possible contingency of Colonel Torrens’s death in the interval between the signature by yourself of the agreement for the lease and the execution of the lease itself by Colonel Torrens after such conveyance from Mr. Barnes to Colonel Torrens had been effected.

Colonel Torrens never has had an alternative offered to him, and in this opinion I am powerfully upheld by those whom I have consulted on the subject. I have also your own repeated admissions of the terms of the contract long subsequent to the date of the signature of the agreement, none of which contain any allusion to such alternative.

Under those circumstances I have to inform you that I hold the lease, which has been perused and approved of by you on the part of Colonel Torrens, based on the agreement referred to to be binding, and that I am entitled to that lease at any time I may require it.

‘ I am, &c,


‘ To R. R. Torrens, Esq’

Mr. Mann continued — The provision referred to was an extraordinary one, and evidently introduced to provide for death, insanity, or some contingency equally irresistible.

The agreement was to be carried out in England, and he could prove that Colonel Torrens put it in hand for that purpose. The plaintiff was entitled to his lease by the equity of the first agreement, and, further, by the terms agreed to by R R Torrens on the faith of. his father’s letters, and that party was bound to abide by his acts, as it would be fraud of the grossest kind to propose further terms with a view to abrogate insidiously a first agreement. The rent agreed to be paid was, for the time, at an unusually high rate, and the pre-emption money liberal in the extreme.

If any variance arose in that extraordinary case, His Honour would perceive it always came from the defendant’s side and if the plaintiff acceded to them, it was because he thought they still retained his right in substance. He (Mr. Mann) confessed the letter of Mr R R Torrens, dated April 17th, 1849, did appear to him most extraordinary. He could understand him if he said his father had refused to ratify an agreement made by him, or that he had gone beyond his powers in making the agreement, but he could not see with what principle of honour he could advise his father, in 1847 or 1848, to repudiate a contract he himself made in 1846. The rapid rise in the value of land consequent on the success of the Burra Burra might, however, throw some light on the subject.

The learned gentleman then read several letters which passed between Dr Kent and R R Torrens, in which the latter persisted in refusing to accept the full rent, but only that which he maintained was the amount to be paid in consequence of Colonel Torrens having availed himself of the alternative in the agreement and refused to give a lease.

Dr Kent’s letters enclosed cheques for the half-yearly rent of £67 or arose out of the refusal to receive that rent.

We subjoin one of them: —

‘East Park Cottage, April 6th, 18??

‘Sir— I beg to return you the enclosed cheques, and for my reason I refer you to my communication of the 31st October last, forwarded to you per Mr Cave.

‘You do me the favour to inform me that Colonel Torrens has made a full statement of the grounds of my claim, and that he has  laid the same before eminent counsel at the Chancery bar, whose opinion is that the claim set up by me is altogether untenable and futile. It is possible that an opinion has been obtained but as facts have a strong bearing, both in law and equity, on the final decision of the case, and as it seems probable to me that the facts of which Colonel Torrens is in possession may differ as widely from those which I act on as our respective notions of equity and justice unquestionably do, you will pardon me if my reliance on the opinion thus obtained is not quite as absolute as that of Colonel Torrens.

I have the honour to be. Sir, your obedient servant,


‘R. R. Torrens, Esq, St. Clair.’

His Honour — Was there no tender of rent but by cheque ?

Mr. Mann — Yes, your Honour, under my advice gold was tendered. The learned gentleman reviewed the case, and submitted he was entitled to the order and injunction, prayed for.

His Honour— This is a most material question as respects both parties and will probably regulate the practice of the Court hereafter. I must take time to consider it, and if necessary have it re-argued.

These legal proceedings seem to have continued for quite some time and during this period, Colonel Torrens sold the section to Charles Robin. Further legal proceedings followed but the end result was that Section 255 was split by Charles Robin into four parts, one part of thirteen acres that went to Dr Kent and on which was situated his East Park Cottage and garden, the second, also of thirteen acres went to Charles Robin (and eventually became Prince Alfred College), the third, of four acres was reserved for James Robin, Charles’ brother, who built a blue stone house on it, St Jacques, now the residence of the PAC Headmaster. The rest of Kent Town was divided into quarter-acre building blocks as show on the map below and auctioned off.

Dr Kent had returned to England permanently by 1858 and in the 1870’s, the Kent Town Brewery was built on the site of East Park Cottage. Beginning in 1978, a social housing complex, Dr Kent’s Paddock was built on the other part of Dr Kent’s allocation and in 2003 the brewery was converted to an  apartment complex.

Prior to 1854, Section 255 was referred to as Dr Kent’s Section but once the town blocks were surveyed, the name changed to Kent Town.

South Australian Register (Adelaide, SA : 1839 – 1900)  Sat 22 Apr 1854


Northern Townships. — On Tuesday Mr. Green sold 70 lots on the land, at Smithfield, about 19 acre in all, for £1,175, being an average of £61 per acre. Several of the lots then sold have since changed hands at a profit. The attendance of buyers was large, and (as the above statement will show) the lots were warmly contested. The sale at Williamtown on Monday next was withdrawn for the present, in consequence of a disputed right of way. As will be seen oy our advertising columns, Mr. Green is about to sell the long-expected Kent Town, better known as Dr. Kent’s section, and a sale of no ordinary magnitude is expected.