Williams v Perpetual Trustee Company Limited [1913] HCA 64

H.C. oF A. 1914.

CROWLEY e

'TEMPLETON.

HIGH COURT (1914 |

one under the 7'ransfer of Lund Act. The presence of a seal by both parties in a given case may or may not be material, accord- ing to the tenor of the document. A lease may, notwithstanding a seal, appear clearly to be under the Act, and the seal may therefore be superfluous. Or there may be additional stipula-

. tions of a personal nature beyond the provisions of the Act, and

as to which a common law covenant may be necessary or desir- able, the seal being reasonably attributable to their presence.

But in the present case there is strong reason for considering the presence of the seal as showing the lease to be one not under the Act, and this is why we consider sec. 8 of so much import- ance. his lease is for five years, and therefore by sec. 3 of the Landlord and Tenant Act (the Statute of Frauds) it is required to be in writing. Superadded to this is sec. 163 of the Real Pro- perty Act 1890 (following 8 & 9 Vict. c 106, see. 3), which declares that "a lease required by law to be in writing of any land" shall be "void at law unless made by deed." Now, the question presents itself, why was this lease made in the form of an indenture, notwithstanding the specific declaration in sec. 92 of the Transfer of Land Act, that every instrument shall be deemed of the same efficacy as if under seal ?

It will be observed that the demise is of furniture as well as of land, and that an undivided rent is stipulated for both land and furniture. Standing by itself, that would not be a determining circumstance, because, as said by the learned Chief Justice, a fur- nished house must be premises that can be leased, and the prin- ciple that in such a case the rent issues out of the land only would apply (Newman v. Anderton (1); Farewell y. Dicken- son (2); and Brown v. Peto (3)). But taken in conjunction with the fact of its seal it has this effect. If the rent is to be regarded as attributable to the land alone, the only apparent reason for sealing is to overcome the provisions of sec. 163 of the Real Pro- perly Act, and this would, by reason of see. 92, be unnecessary if the lease were under the Transfer of Land Act.