High Court of Australia
71 C.L.R.] OF AUSTRALIA.
[HIGH COURT OF AUSTRALIA.]
TOOHEYS LIMITED . : : : Z . APPELLANT ;
PLAINTIFF, AND
THE MUNICIPAL COUNCIL OF SYDNEY . ReEsponpeENT. DEFENDANT,
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Liquor—Licensed premises—Licence fees—Lessors and lessees—Payment of fees— Statutory apportionment—Recovery of proportion from owner—Right of mort- gagee of leasehold in possession—Liquor Act 1912-1937 (N.S.W.) (No. 42 of 1912—No. 35 of 1937), s. 21 (2)}—Real Property Act 1900-1940 (N.S.W.) (No. 25 of 1900—No. 45 of 1940), 8. 64,
The holder of a publican's licence under the Liquor Act 1912-1937 (N.S.W.) held the licensed premises under a lease granted to him by a company as mortgagee in possession under a sub-lease. The company was also mortgagee of the head lease and upon default by the mortgagor had, under its mortgage, also entered into the receipt of the rents and profits under the héad-lease. The land was under the Real Property Act 1900-1940 (N.S.W.) and all the lease and mortgage interests were duly registered under that Act. The holder of the publican's licence, pursuant to s. 21 (2) of the Liquor Act, deducted two-fifths of the licence fee from the rent payable by him to the company as mortgagee in possession.
Held that s, 64 of the Real Property Act did not operate to confer upon the company the right which a lessee has by virtue of s. 21 (2) of the Liquor Act to deduct from the rent payable in respect of the licensed premises, or to recover from his lessor, a sum equal to two-fifths of the licence fee,
Apprat from the Supreme Court of New South Wales.
The Liquor Act 1912-1937 (N.S.W.), by s. 21 (2), provides, so far as material, that the holder of a publican's licence who is not the owner of the premises in respect of which the licence fee is paid shall be entitled to deduct from any rent payable by him in respect of such premises, or to recover from his lessor in any court of competent jurisdiction, a sum equal to two-fifths of the licence fee
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