High Court of Australia
OF AUSTRALIA.
[HIGH COURT OF AUSTRALIA.)
THOMAS DEFENDANT, AND THE CROWN gi ts Fae RESPONDENT PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALL
New trial—Surprise—Statute of Frands—-Part-performance—Ratification—-Agrer- ment for lease by subordinate officer of Government.
'Acts relied on as part-performance to take a case out of the Statute of Frauds must be unequivocally referable to the alleged agreement.
'The implication of a tenancy from year to year from the acceptance of rent by a landlord from a tenant holding over after the expiration of his tenancy may be excluded by the other circumstances of the case.
A new trial will not be granted on the ground of surprise if the evidence alleged to be in the nature of a surprise is immaterial.
The defendant was the lessee of the Perth City Markets from the Crown for a period of three years, with a right of extension for a further period of one year and fourteen days. 'The defendant alleged that before the expira- tion of the three years it was verbally agreed between him and one Cowen (then Director of Agriculture) that in consideration of defendant allowing certain structural alterations in the markets to be made, and paying, in addition to the tent, the sum of six per cent. upon the outlay, he was to have a further lease of seven years. Evidence was given of a conversation between defendant and the Minister, after the death of Cowen in which the terms of the agreement with Cowen were alleged to have been stated to the Minister. After this conversation the defendant wrote to the Minister asking for favourable consideration of the agreement, but the Minister refused to confirm it, The defendant remained in possession after the three years had expired until the expiration of the year and fourteen days, and paid interest at 6 per cent, on the value of certain improvements, but it appeared that he had agreed 'in writing to do so before making the alleged agreement with Cowen. 'The Crown then brought this action for recovery of possession of the land. The defendant set up the verbal agreement with Cowen, ratification by the Minister, and part-performance. The jury found that the alleged agreement
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