for recovery of possession-Order-Warrant to issue-Sub-lessee holding over after date fixed for execution of warrant-Subsequent proceedings by tenant and BRISBANE,

sub-lessee for rescission of order unsuccessful-Warrant finally executed one June 25, 26;

year after date originally fixed for execution-Liability of tenant to landlord- MELBOURNE,

Mesne profits-Rent-Costs incurred by landlord--The Landlord and Tenant Acts 1948 to 1949 (Q.) (12 Geo. VI. No. 31-13 Geo. VI. No. 31), 8. 62- National Security (Landlord and Tenant) Regulations (S.R. 1945 No. 97- S.R. 1948 No. 108), reg. 75.

In proceedings by a landlord of premises to which the National Security (Landlord and Tenant) Regulations and subsequently The Landlord and Tenant Acts 1948 to 1949 (Q.) applied, an order was made for the recovery of possession of the premises. On 15th July, 1948, the date fixed for the execution of the warrant, the landlord entered into possession of portion of the premises, the remainder having been sublet without his knowledge or consent to a sub-tenant who had obtained an interim injunction restraining the landlord from entering into possession. Later the sub-tenant and the tenant applied for rescission of the order for possession, but those proceedings were unsuccessful. The warrant was executed on 15th July, 1949, and the landlord entered into possession of the whole of the premises.

The landlord brought an action for damages against his former tenant alleging that he had suffered damage by the loss of " mesne profits and/or rental " for the period of one year from 15th July, 1948, and also claiming the expenses incurred by way of costs of legal proceedings for the purpose of recovering possession of the premises. The tenant demurred.

84 CLR 311

Held 1 That as the tenant was not alleged to have authorized the sub- tenant to remain in possession or to have received any rents or profits in respect of his doing so, semble, he was not liable for mesne profits, but, by Dixon, Williams, Fullagar and Kitto JJ., that he was liable in damages for his failure to perform his obligation to deliver up the whole of the demised premises. Those damages might or might not, according to the circum- stances, be of an amount equal to the rental value of the demised premises as a whole. By McTiernan J., that a count for use and occupation lay and on that count the landlord was entitled to recover rent from the tenant.

(2) That, by reason of reg. 75 of the National Security (Landlord and Tenant) Regulations (s. 62 of The Landlord and Tenant Acts 1948 to 1949 (Q.) ), which provides that no costs shall be recoverable in any proceedings to which the Part applies not being proceedings in respect of an offence, the landlord could not recover from the tenant the costs of the proceedings which ended in the ejectment of the sub-lessee.

Nowell v. Roake, (1827) 7 B. &C. 404 [108 E.R. 774]; 1…

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 Anderson v Bowles

Details

AGLC: Anderson v Bowles [1951] HCA 61
Case: [1951] HCA 61
Decision Date: 22 October 1951

CaseChat Overview and Summary

This case involved a landlord, Miss Bowles, and her former tenant, Mr. Anderson, concerning premises that had been sublet by Mr. Anderson without the landlord's consent. Following an order for possession, the landlord entered part of the premises, but a sub-lessee, Mr. James, remained in possession of another part due to an interim injunction. Subsequent attempts by both the tenant and sub-lessee to rescind the possession order were unsuccessful. The warrant for possession was finally executed a year after its initial date, with the landlord regaining full possession. The landlord then sued the tenant for damages, claiming loss of "mesne profits and/or rental" for the year the sub-lessee held over, as well as the costs incurred in legal proceedings to recover possession. The tenant demurred to these claims.

The High Court was required to determine two primary legal issues. Firstly, whether the tenant was liable for mesne profits or damages for the period the sub-lessee remained in possession after the original possession order was to be executed. Secondly, whether the landlord could recover the costs of the legal proceedings undertaken to regain possession, given the provisions of the National Security (Landlord and Tenant) Regulations.

The Court, by a majority, held that the tenant was not liable for mesne profits as he had not authorised the sub-lessee's continued occupation or received any profits from it. However, the majority found the tenant liable in damages for breaching his contractual obligation to deliver up the entire premises. These damages were not necessarily equivalent to the rental value. Justice McTiernan, dissenting on this point, found that a count for use and occupation lay, entitling the landlord to recover rent. Regarding the costs of legal proceedings, the Court unanimously held that the landlord could not recover these expenses. This was due to Regulation 75 of the National Security (Landlord and Tenant) Regulations, which expressly prohibited the recovery of costs in such proceedings, a legislative provision that superseded the common law principle allowing for the recovery of such costs as damages in certain circumstances.

The High Court varied the decision of the Supreme Court of Queensland. The demurrer was allowed in respect of the claim for costs, meaning the landlord could not recover these expenses. The demurrer was overruled in respect of the claim for mesne profits or rental, allowing the landlord to pursue damages for the loss of use of the premises. The parties were ordered to bear their own costs of the appeal and the demurrer proceedings in the Supreme Court.

Orders