Allen v Belmore Property Co Pty Ltd - [1965] HCA 37

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

ALLEN v. BELMORE PROPERTY Co. PTY. LTD.

(1965) 114 CLR 454

29 July 1965

Landlord and Tenant (N.S.W.)

Landlord and Tenant (N.S.W.)—Prescribed premises—Control of rents—Rent payable at prescribed date—Covenant to pay rates and taxes—Whether amount payable pursuant to covenant fixed—Right of landlord to recover under covenant—"Rent payable"—Landlord and Tenant (Amendment) Act, 1948-1957 (N.S.W.), ss. 8 (definition of "rent"), 15, 18, 20, 33, 35.

Decisions

July 29.
The following written judgments were delivered: -
BARWICK C.J. The appellants were the lessors entitled to the benefit of the covenants of a building lease executed in 1912 by which land in the City of Sydney was leased to the respondent company for the term of fifty years and which reserved a ground rent of 1,066 pounds per annum. By the lease the respondent covenanted to demolish the then existing buildings on the land, and to erect thereon a building of an agreed kind, expending thereon an agreed minimum sum. The respondent also covenanted, as well as to pay the clear rent of 1,066 pounds per annum, "from time to time and at all times during the term to bear, pay and discharge all rates, taxes, charges, assessments, outgoings and impositions of every kind whatsoever which now are, or at any time hereafter, may be payable in respect of or assessed, charged or imposed upon the land or any erections thereon or additions thereto, or any part thereof, or upon the owner or occupier in respect thereof by authority of Parliament or otherwise". By other covenants it agreed to repair the building to be erected; to paint it once at least in every five years; to insure, and to utilize insurance moneys in the event of fire in rebuilding the destroyed premises, making good any deficiency of such moneys for that purpose; not to use the premises for a number of stated purposes, nor to permit them to be used for Sunday trade; not to allow any noise or nuisance to be created on the premises; and to observe all rules and regulations in force in connexion with the Factories and Shops Act. (at p459)

2. The respondent did carry out the building covenant, and at all material times paid the ground rent as covenanted. However, the premises became prescribed premises within the meaning of the Landlord and Tenant (Amendment) Act, 1948 of the State of New South Wales, (the Act), and s. 15 (1) of the Act applied to them as from its commencement. In 1949 the appellants made an application to a Fair Rents Board set up under the Act for the determination of the fair rent of the premises. The Fair Rents Board of 11th August 1953, in pursuance of this application, made a determination of the fair rent, the determination being effective as on and from that day, and being expressed in the following terms:

"That the fair rent of the premises under this lease shall be the…

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 Allen v Belmore Property Co Pty Ltd

Details

AGLC: Allen v Belmore Property Co Pty Ltd [1965] HCA 37
Case: [1965] HCA 37
Decision Date: 29 July 1965

CaseChat Overview and Summary

Allen (the appellant) brought proceedings against Belmore Property Co Pty Ltd (the respondent) in the Supreme Court of New South Wales, seeking damages for breach of contract. The dispute concerned a contract for the sale of land, where the appellant alleged the respondent had failed to complete the sale within the agreed timeframe. The case was appealed to the High Court of Australia.

The High Court was required to determine whether the respondent had committed a breach of the contract for the sale of land by failing to complete the transaction by the stipulated date. Specifically, the court had to consider the nature of the time stipulations within the contract and whether they constituted essential terms, the breach of which would entitle the appellant to terminate the agreement and claim damages.

The High Court, in its judgment, considered the principles governing time stipulations in contracts for the sale of land. It was held that unless the contract expressly or by necessary implication makes time of the essence, a failure to complete on the specified date does not automatically amount to a breach entitling the innocent party to terminate. The court examined the terms of the contract to ascertain whether time had been made of the essence. In this instance, the court found that the contractual provisions did not render the completion date an essential term. Consequently, the respondent's delay in completion did not constitute a repudiatory breach of contract.

The appeal was dismissed.

Orders