Barnard v Gorlin

This case concerned an appeal to the High Court from a decision of the Supreme Court of New South Wales. The appellant, Mr. Barnard, was the lessee of premises which he used to conduct a business of sub-letting forty-one of the forty-two rooms as separate residential units, while he occupied the remaining room. Mr. Barnard sought an order under section 62A of the *Landlord and Tenant (Amendment) Act 1948-1952* (N.S.W.) to prevent his lessor, Mr. Gorlin, from issuing a notice to quit, in anticipation of assigning the lease to a purchaser of his sub-letting business. A District Court judge had granted this order, finding that the premises were not used solely as a dwelling house due to Mr. Barnard's business activities.

The legal issues before the High Court were whether the appeal lay as of right, and if so, the proper interpretation of section 62A of the *Landlord and Tenant (Amendment) Act 1948-1952* (N.S.W.) concerning the "use" of premises. Specifically, the Court had to determine whether the lessee's business of sub-letting rendered the premises not "used solely as a dwelling house" for the purposes of the section, or if the sole use by the occupants was the determining factor.

The High Court held that the appeal did not lie as of right based on the material before it. Regarding the interpretation of section 62A, the Court reasoned that the section was concerned solely with the physical acts performed on the premises and the character of those acts. It adopted the reasoning of Roper C.J. in Eq. in *In re Appeal by Effie Smith*, stating that the relevant purpose to consider is that for which the premises are used by the persons who occupy and use them. Therefore, even though the lessee conducted a business of sub-letting, if the sole use by the occupants of the individual units was for residence, then the premises were considered to be used solely as a dwelling house for the purposes of section 62A, and the lessee's business activities were irrelevant to this determination.

The High Court affirmed the decision of the Supreme Court of New South Wales, subject to a variation in the orders. The appeal to the High Court was dismissed with costs, and the rule of the Supreme Court was varied to include an order discharging the order of the District Court judge.