Bendigo Cemeteries Trust

The Supreme Court of Victoria considered a dispute between the Bendigo Cemeteries Trust and Iain Campbell Thompson. The Trust sought to recover possession of land from Mr. Thompson, who had occupied it for many years. The central issue was whether Mr. Thompson's occupation constituted a lease or a licence, and consequently, whether the Trust was entitled to terminate his occupancy and regain possession.

The court was required to determine the legal characterisation of Mr. Thompson's occupation of the land. Specifically, it had to ascertain whether the agreement between the parties created a landlord-tenant relationship, thereby granting Mr. Thompson exclusive possession of the land, or whether it merely conferred a personal right to occupy the land, which would be a licence. This determination was crucial for deciding whether the Trust could lawfully terminate the arrangement and seek possession.

In reaching its decision, the court analysed the terms of the agreement and the surrounding circumstances. It applied the established legal principles for distinguishing between a lease and a licence, focusing on whether the occupier had been granted exclusive possession. The court found that the agreement did not grant exclusive possession to Mr. Thompson, but rather a personal right to use the land for a specific purpose, which constituted a licence. Consequently, the court held that the Trust was entitled to terminate the licence and recover possession of the land.