Australian Provincial Assurance Association Ltd v Roddy [1956] HCA 33

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Fullagar JJ. Australian Provincial Assurance Association Ltd v Roddy [1956] HCA 33

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered by:—

June 26 Dixon C.J., McTiernan, Williams and Webb JJ.

Special leave to appeal was granted in this case because it appeared to raise a question of some possible importance concerning the operation of s. 15 of the Landlord and Tenant (Amendment) Act 1948-1952. That question is, how does s. 15 (1) apply in the case of prescribed premises which at 1st March 1949 were governed by a lease reserving a rent consisting of a percentage of the receipts of a business carried on by the tenant upon the demised premises?

The premises to which the appeal relates were in existence and were subject to a lease on 1st March 1949. They therefore do not fall within sub-s. (2) of s. 15 or within the excepting words with which sub-s. (1) opens and it is upon the operation of the general words of sub-s. (1) that the matter depends. Those words provide that the rent payable by the lessee shall not, in respect of any period after the commencement of the Landlord and Tenant (Amendment) Act 1951, that is to say after 28th December 1951, and notwithstanding any term or covenant in any lease in force at any time after such commencement, exceed the rent payable in respect of the prescribed premises at 1st March 1949. There is a qualification that does not affect this appeal with reference to cases where the rent has been altered by a determination made before 28th December 1951; indeed sub-s. (3) provides that nothing in the section shall affect the operation of a determination. By sub-s. (4) the rent "fixed by sub-s. (1)" is made the "fair rent", that is until it is increased or decreased by a determination. The "rent fixed by sub-s. (1)" is a phrase obviously referring to the rent which sub-s. (1) says must not be exceeded. Section 35 (1) (b) provides, among other things, that a person shall not receive any sum as rent exceeding the fair rent of the premises. The appellant was convicted of an offence against this provision. The offence consisted in receiving on or about 4th June 1953 as rent for certain premises at the corner of Martin Place and Elizabeth Street, Sydney, the sum of £606 13s. 4d. for a period of one month at the rate of £140 per week which exceeded the fair rent of the premises, namely £109 13s. 1d.