Cairns v Burgess [1905] HCA 2

298 HIGH COURT

(HIGH COURT OF AUSTRALIA.)

CAIRNS DEFENDAN'

ayo BURGESS anp OTHERS . a 3 3 - _ RESPONDEN PLAINTIFES, 7

ON APPEAL FROM THE SUPREME COURT OF TASMANIA.

H.C.or A. Lease—Condition of forfeiture—Mortgage—Rights of Equitable Mortgageeasap 1905. lessor to Mortgagor—Estoppel—Frand—Lying-by — Practice —Jurial

Originating Summons—Equity Procedure Act (No. 4) (Tasmania), (51 'Hoar, No. 13), secs. 3, 4.

usual covenants and provisoes in leases of public houses. 'The lease @ covenant by S. not to assign or sublet without leave and a proviso re-entry on default in payment of rent, or on the bankruptcy of the lesse,| there was no evidence whether or not such covenants or Provisoes were t in leases of public houses in Tasmania. In order to enable S. to make Payment of £600 to the appellant, he to the knowledge of the borrowed £400 from respondents, and in consideration thereof agree 'execute a mortgage to the respondents of the lease when executed. No! mortgage of the lease was executed, but respondents became equit

made default both in payment of his rent under the lease, and in rep of the £400 and interest due to respondents, Appellant refused t0 Tent from respondents, and 8, was adjudicated bankrupt. On an origins

'summons taken out by respondents and directed to S, and appellant, ai for an order for possession of the hotel :

Held, reversing the decision of the Supreme Conrt of Tasmania, th the bankruptcy of S$. the appellant was entitled to enforce the proviso forfeiture not only as against S. the lessee, but also as against respondents i equitable mortgages, and that the mere fact of knowledge by the «PP

OF AUSTRALIA. 299

tut the le intended to mortgage the term when ereated did not of itself H.C. o A. 'any obligation upon her to protect the future mortgagee's interests, 1905.

woot by way of estoppel to prevent the operation of any proviso for ——