Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72

High Court of Australia Williams, Webb, Fullagar, Kitto and Taylor JJ. Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) [1955] HCA 72

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 15 Williams, Webb and Taylor JJ.

This is an appeal from an order of the Full Supreme Court of New South Wales discharging a rule nisi for a writ of prohibition sought by the appellant directed to a magistrate and the Commissioner for Railways restraining them from further proceeding on an order made by the magistrate sitting as a Court of Petty Sessions on 23rd September 1954 whereby the commissioner was adjudged entitled to possession of certain premises situate at Wynyard Railway Station, Sydney, and a warrant was ordered to issue giving possession of these premises to the commissioner. The facts can be shortly stated. On 9th May 1949 the commissioner leased the premises in question to one Collins for a term of five years from 15th July 1949. The tenancy was assigned to the appellant on 17th July 1952. Immediately upon the expiry of the term the commissioner took proceedings under Pt. IV of the Landlord and Tenant Act 1899-1948 to recover possession of the premises. At the conclusion of the case for the informant the tenant asked that the information should be dismissed on the ground that the informant was not the Crown in right of the State of New South Wales within the meaning of s. 5 (a) of the Landlord and Tenant (Amendment) Act 1948-1952 and was therefore bound by that Act and could only bring proceedings for ejectment in accordance with its provisions. But the magistrate held that the informant was the Crown within the meaning of that sub-section and that the Act did not therefore apply to the informant. The question whether the magistrate was right or not in so holding was the only question at issue before the Supreme Court and it is the only question at issue before us.