Mullen v Hood [1935] HCA 67

04 C.L.R.] OF AUSTRALIA. 35,

{HIGH COURT OF AUSTRALIA.]

MULLEN AND OTHERS . és F 3 . APPELLANTS ; APPLICANTS, AND HOOD AND OTHERS ays Se é . RESPONDENTS. 'RESPONDENTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Liquor—Licensed premises—Buildings—Demolition—Licence—Renewal—Removal— 44. (, op A. 'Appeal—Order confirmed subject to undertaking—Liquor Act 1912-1929 (N.S.W.) 1935, (No. 42 of 1912—No. 49 of 1929), secs. 394, 131. eas,

Sypx 'A Licensing Court made an order for the removal of a publican's licence pee on

from one place to another. An appeal by certain objectors to a Court of Quarter Sessions was dismissed upon the licensee giving an undertaking that Bich. § ee the lease of the new premises would contain a covenant requiring the licensee and MeTiernan to conduct the premises as a residential hotel, and that any breach of the y

covenant might be treated as a ground of objection to the renewal of tneCppliec!

(472 NISUIR 13

licence. Held that the determination of the Court to confirm the removal order was not vitiated by the exaction of the undertaking.

Although under the Liquor Act 1912-1929 (N.S.W.) a new licence cannot be granted except in respect of an existing or prospective building, it is within the discretion of the Licensing Court to renew a licence notwithstanding the demolition of the buildings.

Decision of the Supreme Court of New South Wales (Full Court): Ex parte Mullen; Re Hood (1935) 35 S.R. (N.S.W.) 289 ; 52 W.N. (N.S.W.) 84, affirmed,

H.C. or A. 1935.

MULLEN

Hoop.

HIGH COURT [1935.

Apprat from the Supreme Court of New South Wales.

Certain land, situate at a corner of Kent Street and Margaret Street, Sydney, upon which was erected a hotel building known as the "Sydney and Melbourne Hotel," and in respect of which a publican's licence under the Liquor Act 1912-1929 (N.S.W.) was held permitting the sale of liquor on the premises, was, by a notice in the Government Gazette, resumed on 8th January 1932 by the Resumed Properties Department. In March 1933 the department took possession of the premises and one Herbert Gillis Ruthven, its nominee, became holder of the licence. In the following month the building was wholly demolished ; and on 14th June 1933 Ruthven obtained a renewal of the licence for the premises, on which no hotel building then stood, for the year Ist July 1933 to 30th June 1934. In May 1934 the licence was sold to William Hood, and on 23rd May 1934 it was transferred to him conditionally on his applying for its removal to other premises. On 25th June 1934 an application by Hood for a renewal of the licence for the year Ist July 1934 to 30th June 1935 was refused by the Licensing Court upon an objection by the licensing inspector that Hood did not have the necessary accommodation on the licensed premises. Upon an appeal by Hood under sec. 170 of the Liquor Act to a Court of Quarter Sessions. that Court, on 3rd August 1934, granted renewal upon his under- taking to apply for the removal of the licence to other premises. An application for this purpose having been made to it, the Licensing Court, on 3rd December 1934, made an order in favour of Hood conditionally granting the removal of the licence to premises situate in Liverpool Street, Sydney, which premises it was intended to reconstruct. Ulick Francis Mullen, hotel-keeper, of the "Crown Hotel," 160 Elizabeth Street, Sydney, Abraham Slutzkin, hotel- keeper, of the " Burdekin Hotel," 2 Oxford Street, Sydney, and Frederick James Bowen, chemist, Mosman, who, with others, had opposed the removal before the Licensing Court, appealed to the Court of Quarter Sessions against the conditional order granting removal. On 22nd February 1935 Judge Edwards, Chairman of Quarter Sessions, dismissed the appeal and confirmed the order of the Licensing Court, Hood having given an undertaking that in any lease of the premises to which the licence was to be removed a