Clarey v The Principal and Council of the Women's College

The High Court of Australia heard an appeal from the Supreme Court of Queensland concerning a dispute between landlords, Alexander and Clarice Clarey, and their tenant, the Principal and Council of the Women's College. The Clareys sought to recover possession of their portion of a building, alleging that the College, as lessees of the rear portion, had permitted conduct constituting a nuisance or annoyance to them as adjoining occupiers, specifically noisy behaviour late at night. The College used its portion of the building to accommodate university students and staff.

The central legal issue before the High Court was whether the conduct of the students, as described by the Clareys, amounted to a nuisance or annoyance to adjoining occupiers within the meaning of section 41(5)(d) of The Landlord and Tenant Acts 1948 to 1950 (Q.). This required the court to consider the nature of the use for which the premises were let and whether the noises complained of were an ordinary and proper incident of that use, or whether they constituted an unreasonable interference with the landlords' peaceful enjoyment of their own part of the building.

The Court reasoned that a landlord who lets part of a building for the accommodation of university students must reasonably expect that such students will keep late hours and, in the course of their normal activities, generate noises incidental to dwelling, such as walking, moving furniture, preparing for bed, and bathing. The Court found that the noises described by the Clareys, including heavy treads, scraping chairs, loud talking, and bathing at late hours, were consistent with the ordinary and proper use of premises let for student accommodation. Applying the principle that a landlord cannot complain of noises that are a natural consequence of the tenant's legitimate use of the premises, especially when the building's construction makes noises audible, the Court concluded that the conduct did not constitute a nuisance or annoyance.

The High Court affirmed the decision of the Supreme Court of Queensland, which had set aside the magistrate's order for possession. Consequently, the appeal by the Clareys was dismissed with costs.