Thompson v Easterbrook [1951] HCA 32

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. Thompson v Easterbrook [1951] HCA 32

ORDER Order of Herron J. varied by omitting that portion thereof whereby it was ordered that the case stated be remitted to the stipendiary magistrate with the opinion of the Supreme Court and that he should hear and determine the information in accordance with such opinion, and by substituting therefor an order that the appeal brought by the case stated be allowed, that the order of the magistrate be discharged and that the information be dismissed. Otherwise appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

June 14 Dixon, Williams, Webb, Fullagar and Kitto JJ.

This is an appeal by leave from an order of the Supreme Court of New South Wales made by Herron J. on 16th May 1950 upon a case stated by a stipendiary magistrate in an application by the appellants under the provisions of the Landlord and Tenant (Amendment) Act, 1948-1949 N.S.W., for the possession of certain land and premises comprising a shop, dwelling and shed situated at 119 Victoria Road, Drummoyne.

The form of the notice to quit on which the application for possession was founded was somewhat peculiar, because it attempted to divide the premises into two portions, a shop and a dwelling house, and as regards the shop it claimed that so much of the premises as were not a dwelling house were reasonably required by the lessors for occupation by them in their trade, calling or occupation. It also claimed that the premises were reasonably required by the lessors for reconstruction or demolition. Obviously premises comprised in one letting cannot be subdivided into two portions in the manner proposed in the first ground, but the hearing before the magistrate proceeded without objection being taken to the form of the notice to quit. If it had been taken, the magistrate might have given leave to the lessors to rely upon a ground not specified in the notice: s. 66. If the premises were a dwelling house as defined by s. 8 of the Act, the notice to quit was invalid because under s. 62 (5) (g) (i) of the Act it is necessary to allege that the premises are reasonably required by the purchaser for occupation by himself or by some person who ordinarily resides with and is wholly or partly dependent upon him. Moreover s. 70 (2) provides that an order for the recovery of possession shall not be made on this ground unless the court is satisfied that the lessor had provided at the date of expiry of the notice to quit, and has immediately available for the occupation of the persons occupying such dwelling house, reasonably suitable alternative accommodation.