Anderson v Bowles [1951] HCA 61

High Court of Australia Dixon, McTiernan, Williams, Fullagar and Kitto JJ. Anderson v Bowles [1951] HCA 61

ORDER Appeal allowed. Order of the Supreme Court discharged. In lieu thereof order that the demurrer be allowed in respect of the plaintiff's claim for costs of the proceedings mentioned in the particulars to par. 33 of the statement of claim and be overruled in respect of the cause of action for the loss of mesne profits described in such particulars as the loss of mesne profits or rental for one year. The parties to abide their costs respectively of the demurrer in the Supreme Court and of the appeal to this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 22 Dixon, Williams, Fullagar and Kitto JJ.

The appellant in this case, being the defendant in an action in the Supreme Court of Queensland, appeals against so much of an order of the Full Court of the Supreme Court as overruled a demurrer to a portion of the plaintiff's statement of claim in the action. The statement of claim, so far as relevant, sought damages against the defendant as the former lessee of certain premises of the plaintiff. It alleged that the plaintiff had suffered damage by the loss of "mesne profits and/or rental" of the premises, and by the expense incurred by way of costs of certain legal proceedings in the course of efforts to recover possession of the premises. The period in respect of which the loss of mesne profits or rental was alleged to have occurred was a period after the defendant had left the premises, the allegation being that during that period a former under-lessee of the defendant had remained in occupation of a portion of the premises. The relevant grounds of demurrer were that the facts alleged did not disclose unlawful possession of the premises by the defendant or his under-lessee, and that by virtue of reg. 75 of the National Security (Landlord and Tenant) Regulations, no costs are allowed in respect of the legal proceedings referred to.