Massart v Blight [1951] HCA 20

High Court of Australia Dixon, McTiernan, Williams, Webb and Fullagar JJ. Massart v Blight [1951] HCA 20

ORDER Appeal allowed with costs. Order of the Supreme Court discharged. Order of magistrate restored.

Cur. adv. vult.

The following written judgment was delivered:—

May 10 Dixon, McTiernan, Williams, Webb and Fullagar JJ.

This is an appeal from an order of the Supreme Court of New South Wales declaring that a magistrate's determination refusing to make an order under the Landlord and Tenant (Amendment) Act 1948-1949 for the recovery of possession of premises was erroneous in point of law and ordering that the case be remitted to the magistrate with the Court's expression of opinion. The proceedings before the magistrate were brought by the landlords who are the respondents upon this appeal against an assignee of the lease who is the appellant. The landlords were themselves assignees of the reversion, but that is not material.

The premises consist of some flats, apparently eight in number, in Blair Street, Bondi. The lease made between the predecessor in title of the landlords (the now respondents) and the predecessor in title of the present tenant (the now appellant) is dated 11th January 1944 and was for a fixed term of two years and four months commencing from that date. It contained, however, a condition that if the lessor should permit the lessee to continue in occupation of the premises after the expiration of the term, which, in the event, happened, the tenancy should continue as a weekly tenancy only at the fixed rental, to be determined by a month's notice in writing from either party thereto. The lease contained a short form of covenant that the lessee would not assign or sublet without leave, no fine to be taken. This form of covenant operates under par. 16 of Part II. of the fourth schedule to the Conveyancing Act 1919-1943 to introduce into the lease the long form of covenant stated in the second column of that schedule. The long form includes a covenant that the lessee will not assign, transfer or part with the possession of the demised premises unto any person or persons without the consent in writing of the lessor, but that such consent shall not be refused in the case of a proposed respectable and responsible assign, tenant or occupier. The appellant acquired title to the tenancy by an assignment dated 20th July 1949 and went into possession of the premises by entering into actual occupation of one of the flats and into the receipt of the rents of the others, which were held by sub-tenants. Notwithstanding s. 36 of the Landlord and Tenant (Amendment) Act 1948-1949, he paid £1,250 to the assignor for the assignment. On 27th August 1949 the respondents gave to the appellant notice to quit and deliver up the premises on 3rd October 1949. Four grounds were stated in the notice to quit, but two of these were negatived on the facts at the hearing of the complaint for the recovery of possession. Of the other two, one was that prescribed by s. 62 (5) (b) of the Act, namely, "that the lessee has failed to perform or observe some other term or condition of the lease (i.e., other than to pay rent) and the performance or observance of that other term or condition has not been waived or excused by the lessor." An information or complaint against the appellant was made by the respondents for the recovery of possession of the premises but it was dismissed by the magistrate who formed the "court of competent jurisdiction".