Barnard v Gorlin [1955] HCA 43

High Court of Australia McTiernan, Williams, Webb, Kitto and Taylor JJ. Barnard v Gorlin [1955] HCA 43

ORDER Rule of the Supreme Court varied by inserting therein, after the order that the appeal to that court be allowed, on order discharging the order of the District Court judge referred to in the notice of appeal to that court. Otherwise rule affirmed and appeal to this Court dismissed with costs.

The following oral judgment of the Court was delivered by:

McTiernan J.:

The material at present before the Court does not show that this appeal lies as of right. Counsel for the appellant has suggested that, if given an opportunity, he might be able to obtain evidence which would establish a right of appeal; but we have heard his submissions on the substance of the matter, and as we have formed a clear opinion that the appeal, if competent, must fail we shall dispose of the case at once.

The appellant is the lessee and the respondent is the lessor of a building known as 140 Palmer Street, East Sydney, comprising forty-two rooms. The appellant lives in one room and sub-lets the remainder as separate residential units. Every occupant of a unit uses it exclusively for the purpose of residence. The appellant contracted to sell to a purchaser what he described as the residential business carried on by him at 140 Palmer Street, East Sydney. Being desirous of assigning his lease of the premises to the purchaser of the business, he applied to a District Court judge under s. 62A of the Landlord and Tenant (Amendment) Act 1948-1952 N.S.W. for an order that a notice to quit, on the grounds mentioned in par. (c) of that section, should not be given if the proposed assignment should subsequently be made. The section gives power to make such an order in respect only of "prescribed premises not being premises used solely as a dwelling house"; and before the District Court judge an objection was taken by the lessor that the premises in question, which admittedly were prescribed premises, were used solely as a dwelling house. "Dwelling house" is defined by s. 8 (1A) to mean, unless the contrary intention appears, any prescribed premises (including shared accommodation) leased for the purposes of residence; and it includes, inter alia, the premises of any lodging-house or boarding-house.