Mathieson v Burton [1971] HCA 4

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Gibbs JJ. Mathieson v Burton [1971] HCA 4

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:

1971, March 4 Barwick C.J.

On 14th September 1958 Patrick O'Brien, then a lessee of prescribed premises within the meaning and operation of s. 83 of the Landlord and Tenant (Amendment) Act, 1948 NSW, died. His married daughter, an only child, a respondent to this appeal, and her husband, formerly a respondent to this appeal but now deceased, then resided with her father in the prescribed premises and on his death remained in possession of them.

Section 83A (1) and (2) inserted in the Landlord and Tenant (Amendment) Act by s. 3 (e) of the Landlord and Tenant (Amendment) Act, 1952 as enacted was in the following terms:

63a.

(1) Where a lessee of prescribed premises dies, and

(a) the spouse of the lessee resided with the lessee immediately before the death of the lessee and is actually in possession of the premises immediately after the death of the lessee; or

(b) where the spouse of the lessee was not so residing or is not so in possession or the lessee was not married at the date of his death, a child of the lessee (being a child of or over the age of twenty-one years) so resided and is so in possession,

such spouse or child, as the case may be, shall, subject to subsection two of this section and until probate or letters of administration of the estate of the deceased lessee are granted, have the like right to continue in possession of the premises as the deceased lessee would have had if he had not died.

In this subsection "child of the lessee" means, where more than one child of the lessee so resided and is so in possession, the elder or eldest of such children.