Belmore Property Co (Pty) Ltd v Allen [1950] HCA 5

High Court of Australia Latham C.J. Dixon, McTiernan, Williams, Webb and Fullagar JJ. Belmore Property Co (Pty) Ltd v Allen [1950] HCA 5

ORDER Application refused. Applicants to pay the costs of the respondents.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 26 Latham C.J., Dixon, McTiernan, Williams, Webb and Fullagar JJ.

This is an application for special leave to appeal against an order of the Full Court of the Supreme Court of New South Wales discharging a rule nisi for prohibition directed to a stipendiary magistrate sitting as a Fair Rents Board under the provisions of the Landlord and Tenant (Amendment) Act 1948-1949. The applicant company is in occupation of property in Pitt Street, Sydney, which is subject to an indenture made on 7th October 1912 between the then owner of the premises and the company. This was a building lease under which the lessee covenanted to pull down the buildings then on the land and to erect a new building to cost at least £10,000. The old buildings were pulled down and the new building was erected. The present landlord made an application to a Fair Rents Board for a determination of the fair rent of the premises. The tenant contended that there was no lease of the buildings now on the land, so that the buildings were not "prescribed premises" within the meaning of the Act, and that the Fair Rents Board had no jurisdiction to increase the existing rent fixed by the contract between the parties. These objections were heard by the stipendiary magistrate who constituted the Fair Rents Board and he ruled against the tenant, the applicant in this Court. The tenant then obtained a rule nisi for prohibition in the Supreme Court on the ground that the owners of the property were not lessors, that there was no lease of the premises and that the premises were not prescribed premises within the meaning of the Act, that the Act did not authorize interference with existing contractual rights in order to increase rent, and that for these reasons the Fair Rents Board had no jurisdiction to entertain the application.