Hare v Terry [1918] HCA 28

468 HIGH COURT eng

[HIGH COURT OF AUSTRALIA.)

HARB ©. 6). + 0 DEFENDANT, AND TERRY 2 fc 2? ES ee PrLarntIFF,

ON APPEAL FROM THE SUPREME COURT OF SOUTH AUSTRALIA.

b H.C. or A, Licensing—Lease of hotel—Right to surrender—Person in occupation "under 0 1918. virtue of" a lease—Transferee of lease—Time of transfer—New covenant Ces pay rent—Waiver—Licensing Acts Further Amendment Act (No. 2) 1915 (S. Mexpourne, —_ (No. 1236), sec. 70—Real Property Act 1886 (S.A.) (No. 380), secs. 150, 1 May 15, 22.

aes provides that "If any premises with respect to which a licence exists at th Ss a time of the commencement of this Act is in the occupation of some person

other than the owner of the same under or by virtue of a lease or a of tenancy granted or entered into before the twenty-seventh day of } nineteen hundred and fifteen, such person . . . may, at any time the period of twelve months from such commencement, give to the le

fourteen days from the giving of such notice, and the lessor or landlord, the case may be, shall, at the cost of the lessee or tenant, execute all doc and do all things necessary to give effect to such surrender." By a proc tion issued on 9th March 1916, the Act came into operation on 26th 1916.

The respondent, who was the registered proprietor of certain land upo which was erected a hotel, by a memorandum of lease, executed on 16th Jun

C.L.R.J OF AUSTRALIA.

By the lease C. for himself and his permitted assigns covenanted during the continuance of the lease to pay the rent at the times and in the manner appointed, and also covenanted not to assign without the written consent of the respondent first being had and obtained. On 10th March 1916 C. transferred the lease to the appellant, and the appellant by the memorandum of transfer covenanted during the unexpired term to duly pay the rent and perform and keep all the covenants, conditions, agreements and restrictions on C.'s part expressed or implied in or by the memorandum of lease. On the memorandum of transfer the respondent indorsed her consent to the transfer, which was dated 11th March 1916, stating her consent to be " on the under- standing and express condition that the lessee's covenants and obligations are in no way impaired relaxed or released thereby but continue in full force and in effect."