Addison v Cain - [1932] HCA 17

ADDISON AND ANOTHER

CAIN AND ANOTHER

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Licensing Law-Licensed victualler-Security or charge for payment of moneys--

Consent of Licensing Court-Protection from unfair and unreasonable terms and conditions-" Lease, licence, goodwill, interest, or other property "-Mortgage of freehold by owner-licensee without consent-Validity-Liquor Acts 1912-1926 SYDNEY,

(Q.) (3 Geo. v. No. 29 -17 Geo. v. No. 3), sec. 69*. May 3.

In sec. 69 of the Liquor Acts 1912-1926 (Q.) the words "interest, or other MELBOURNE,

property" include a freehold estate. The application of the section is not May 30.

limited to securities or charges which contain stipulations relating to supplies of liquor or goods.

Decision of the Supreme Court of Queensland (Webb J.) reversed. * The Liquor Acts 1912-1926 (Q.)

lease, licence, goodwill, interest, or provide, by sec. 69, as follows -"(1)

other property of the licensee in or in It shall not be lawful for any licensed

connection with the licensed premises, to give, or for any

without the consent of the Court. As person to take, any security or charge

a condition precedent to the giving of for the payment of moneys over the

such consent, the Court may require to

47 CLR 209

APPEAL from the Supreme Court of Queensland.

The plaintiffs, George Frederick Addison and Herbert Stanley MacDonald, carrying on a business in partnership as architects, brought an action against Annie Teresa Cain, licensee of Lennon's Hotel, George Street, Brisbane, and the City Mutual Life Assurance Society Ltd., for a declaration that certain mortgages given by Mrs. Cain, and taken by the Society, in respect of the land on which the said hotel was erected were given and taken contrary to the provisions of sec. 69 of the Liquor Acts 1912-1926 (Q.), and were void and of no effect.

The statement of claim alleged in substance (inter alia) that, on 10th April 1929 and on 1st August 1930 respectively, Mrs. Cain, as owner thereof, gave to the City Mutual Life Assurance Society Ltd., and the Society took, two several securities or charges over freehold lands comprising the licensed premises known as Lennon's Hotel and over the licence held by Mrs. Cain under the Liquor Acts 1912- 1926 in respect of the said licensed premises and over other interests of Mrs. Cain in or in connection with such licensed premises, the bills of mortgage containing such securities or charges being registered under the provisions of the Real Property Acts of 1861 and 1877 (Q.); that such securities or charges were given and taken without the consent of a Licensing Court constituted under the Liquor Acts 1912-1926, and were given and taken in contravention of sec. 69 of those Acts; and that the plaintiffs were the holders of a lien under the Contractors' and Workmen's Lien Acts 1906 to 1921 (Q.) over the lands above referred to, which said lien was registered subsequent to the bills of mortgage in question. The plaintiffs claimed a declaration that the bills…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Addison v Cain

Details

AGLC: Addison v Cain [1932] HCA 17
Case: [1932] HCA 17
Decision Date: 30 May 1932

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Queensland concerning the validity of mortgages granted by a licensed victualler over her freehold property. The appellants, who held a lien over the land, sought a declaration that mortgages granted by the licensee, Mrs. Cain, to the City Mutual Life Assurance Society Ltd. were void. The core of the dispute was whether section 69 of the *Liquor Acts 1912-1926* (Q.) required the consent of the Licensing Court for such mortgages, even though the licensee was the owner of the freehold and the mortgages did not contain specific stipulations regarding liquor supplies.

The legal issues before the High Court were whether the term "other property" in section 69 of the *Liquor Acts* extended to a freehold estate in licensed premises, and whether the section's application was limited to securities containing stipulations for exclusive dealings in liquor or goods. The Supreme Court had held that the freehold was excluded by the application of the *ejusdem generis* rule, interpreting the general words as being restricted to interests of a similar kind to those specifically mentioned (lease, licence, goodwill).

The High Court, in allowing the appeal, reasoned that the purpose of section 69 was to protect licensed victuallers from unfair and unreasonable terms in securities that could fetter their business operations. This protection was deemed equally necessary for a freeholder as for a leaseholder. The Court found that the words "interest, or other property" should be given their natural and widest meaning, and that the *ejusdem generis* rule should not be applied to restrict their scope in a way that would frustrate the legislative intent. The Court also determined that the section's application was not limited to securities containing specific stipulations for exclusive dealings, as its broader aim was to grant the Licensing Court general supervision over the terms and conditions of securities affecting licensed premises.

The High Court ordered that the appeal be allowed, the judgment of the Supreme Court be set aside, and a declaration be made that the bills of mortgage were unlawful and invalid insofar as they purported to give security over the freehold land. The respondent Society was ordered to pay the appellants' costs.

Orders