Dalby v Gazzard [1949] HCA 36

High Court of Australia Dixon, McTiernan, Wiliiams and Webb JJ. Dalby v Gazzard [1949] HCA 36

ORDER Appeal allowed. So much of the order of the magistrate as directed that the warrant of possession be not executed against the respondent John Gazzard discharged. Costs of the appeal to this Court to be paid by the respondent John Gazzard.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 18 Dixon, McTiernan, Williams and Webb JJ.

This is an appeal by special leave from portion of an order made by a Court of Petty Sessions exercising Federal jurisdiction.

The order was made upon an information exhibited in the name of one, on behalf of both, of the appellants. By the information they seek to be put into possession of an unfurnished flat which they allege had been held by them as landlords by the respondent Sheila Gazzard as tenant upon a tenancy that had been determined. They claimed that the respondent Sheila Gazzard retained possession. It appeared, however, that the respondent John Gazzard was in actual occupation and that he was a "protected person." The magistrate adjudged that the informant was entitled to possession as against the respondent Sheila Gazzard, but ordered that the warrant of possession should not be executed against the respondent John Gazzard, being a protected person. The appeal is by the landlords against so much of the order as directs that the warrant should not be executed against the respondent John Gazzard.

In giving the direction the magistrate acted under reg. 30 (6) of the National Security (War Service Moratorium) Regulations. That sub-regulation provides that where a tenancy has been lawfully determined and any person claiming under the lessee and actually in possession of the premises or any part thereof is a protected person an order for the ejectment of persons from those premises or for the recovery of possession of those premises shall not be enforced against the protected person, unless the court is satisfied of the existence of one or other of certain states of fact which the sub-regulation defines.