Clarey v Principal & Council of Women's College [1953] HCA 58

High Court of Australia Williams A.C.J. Webb, Kitto and Taylor JJ. Clarey v Principal & Council of Women's College [1953] HCA 58

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 11 Williams A.C.J., Webb, Kitto and Taylor JJ.

This is an appeal from an order of the Full Supreme Court of Queensland which made absolute an order nisi to review an order of a magistrate made under the provisions of the Summary Ejectment Act of 1867 Q. and The Landlord and Tenant Acts 1948 to 1950 Q.. The magistrate adjudged that the applicants, the appellants in this Court, were entitled to possession of the land and premises occupied by the Principal and Council of the Women's College within the University of Queensland, the respondents on this appeal, at the corner of Lambert Street and O'Connell Street, Kangaroo Point, Brisbane, and ordered that a warrant should issue to eject the respondents from these premises and to give possession thereof to the appellants. The Supreme Court ordered that the order of the magistrate should be set aside and that any warrant issued in consequence of that order should be rescinded. The only appeal to the Supreme Court from the order of the magistrate is that contained in s. 53 of The Landlord and Tenant Acts, sub-s. 2 of which provides that there shall be an appeal, as to questions of law only, to the Supreme Court from any judgment or order of a court of competent jurisdiction in proceedings under this Part of the Act. The ground on which the magistrate found for the appellants and made the order for recovery of possession was that contained in s. 41 (5) (d) of The Landlord and Tenant Acts, that is to say, that the lessee had been guilty of conduct which was a nuisance or annoyance to adjoining or neighbouring occupiers. The particulars given in support of this ground were as follows: "You have permitted or allowed noisy and rowdy behaviour on the subject premises at late hours of the night and early hours of the morning. In spite of repeated warnings and requests the occupiers of the premises walk heavily over bare boards, slam doors, pull furniture about and indulge in loud talking and laughter and generally disturb the peaceful enjoyment of the premises by the Lessors in the late hours of the night and early hours of the morning whereby the Lessors are awakened and/or prevented from sleeping and as a result their health has been affected." The appellants occupy the front portion and some of the students and staff of the Women's College the rear portion of the building. The rear portion was first let to the respondents to provide accommodation for some of its students and staff in 1940. At that time the appellants occupied as part of their portion a large room with a fireplace which formed a sort of buffer between the front and the rear of the building, and helped to prevent noises made by the students being heard in the portion occupied by the appellants. About February 1947 the appellants went to live in Melbourne and let the whole building to the respondents. In 1950 the appellants returned to Brisbane and the respondents at their request gave up possession of that part of the front of the building they now occupy, the respondents continuing as tenants of the rear of the building and of the room with the fireplace. The appellants, soon afterwards, began to request the respondents either to give up possession of the rest of the building or to purchase the whole of the premises or at least to give up possession of the room with the fireplace. The respondents were unable to agree to any of these requests. The correspondence on these subjects that passed between the parties is set out in full in the reasons of the learned Chief Justice of Queensland and need not be repeated.