Scott v Shire of Numurkah [1954] HCA 14

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Scott v Shire of Numurkah [1954] HCA 14

ORDER Appeal allowed with costs. Order of the Supreme Court of 11th August 1953 discharged. In lieu thereof order that the judgment pronounced by Gavan Duffy J. on 16th December 1952 and 8th January 1953 be discharged and that a new trial of the action be had between the parties and that the costs of the former trial be dealt with by the judge before whom such trial is had and that the plaintiff pay the defendant's costs of the appeal to the Full Court of the Supreme Court. Declare that the costs payable by the plaintiff of the appeal to the Full Court of the Supreme Court and the costs payable by the defendant of the appeal to this Court ought to be set off. Liberty to apply to this Court for an order giving effect to such set off and execution under the order for costs stayed subject to further order accordingly.

Cur. adv. vult.

The following written judgments were delivered:—

April 14 Dixon C.J., Webb, Kitto and Taylor JJ.

This is an appeal by leave from an order of the Full Court of the Supreme Court of Victoria setting aside an order made in proceedings for an injunction and entering judgment for the defendant, the present respondent.

Before referring to the nature of the order made in the first instance or to the questions which arise on this appeal it is convenient, first of all, to make some mention of the circumstances in which the conflict between the parties arose. The respondent is a body corporate created by the provisions of the Local Government Act 1946 Vic and is the owner of a building at Numurkah known as the town hall. The appellant is a motion picture exhibitor and on 28th February 1950, the respondent, by deed, purported to demise to him "the amusement part or portion of the building (save and except the supper room the kitchen and the sweets stall included therein and preserving the sole right to the licensee or proprietor for the time being of the sweets stall to vend refreshments and sweets before the commencement and during the interval of any motion picture performance) for the purpose of exhibiting therein motion pictures but for no other purpose on each and every Wednesday and Saturday night in each week during the said term with the right on the said nights between the hours of 6 o'clock p.m. and 12 o'clock midnight to the exclusive use and occupation of the demised premises subject to the right of free access of the general public to the ladies' and men's cloakrooms and conveniences therein". The term of the "demise" was a period of three years from 1st January 1950.