RESPONDENT. LIMITED Contract-Licence-Racecourse-Permission to view races--Revocation of licence
-Forcible removal of spectator who had paid for admission-Assault-Damages -E- rights-Equitable pleadings. Practice (N.S.W.)-Pleading-Equitable replication-Common Law Procedure Act
1899 (N.S.W.), (No. 21 of 1899), secs. 95, 97.
The appellant brought an action at common law against the respondent for damages for assault. The defence was that the appellant was trespassing on the respondent's land and that the respondent's servants and agents requested him to leave the land, which he refused to do, and the respondent's servants and agents thereupon removed him, using no more force than was necessary for that purpose, and that that removal was the alleged assault. The appellant, for reply on equitable grounds, said that the respondent was conducting a race meeting on the land and that in consideration of the appel- lant paying four shillings the respondent promised to allow him to remain on the racecourse and view the races, gave him leave and licence to enter and remain on the racecourse for that purpose and promised not to revoke the licence; that the appellant paid four shillings but the respondent, in breach of the promise alleged, revoked the leave and licence and assaulted the appel lant in ejecting him from the racecourse. The respondent demurred to this pleading.
Held, by the whole court, that the licence, although given for value, did not create a proprietary interest in the land, but created a contractual right only,
and was revocable at common law and (Evatt J. dissenting) that equity did not preclude the defendant from effectively revoking the licence or relying upon its revocation. Therefore there must be judgment for the respondent
Wood v. Leadbitter, (1845) 13 M. &W. 838 153 E.R. 351, followed. Naylor v. Canterbury Park Racecourse Co, Ltd., (1935) 35 S.R. (N.S.W.) 281; 52 W.N. (N.S.W.) 82, approved.
Hurst v. Picture Theatres Ltd., (1915) 1 K.B. 1, not followed. The circumstances in which a replication on equitable grounds may be pleaded under sec. 97 of the Common Law Procedure Act 1899 (N.S.W.) discussed.
Decision of the Supreme Court of New South Wales (Full Court) affirmed.
APPEAL from the Supreme Court of New South Wales.
In an action brought in the Supreme Court of New South Wales, the plaintiff, Albert Boesenberg Cowell, claimed from the defendant, the Rosehill Racecourse Co. Ltd., the sum of £5,000 as damages for an assault alleged to have been committed upon him by the defen- dant's servants and agents.
By its third plea the defendant pleaded that at the time of the alleged assault the plaintiff was trespassing on certain land owned by the defendant and that the defendant's servants and agents requested him to leave the land, which he refused to do, and the defendant's servants and agents thereupon gently laid hands upon him in order to remove him from the land doing no more than was necessary for that purpose and that this was the alleged assault.
For a…
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.
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Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17
Case
[1937] HCA 17
Decision Date
CaseChat Overview and Summary
The appellant, Mr Cowell, sued the respondent, Rosehill Racecourse Co Ltd, for damages for assault. The respondent's defence was that the appellant was trespassing on its land and was removed using no more force than necessary. The appellant, by way of an equitable replication, asserted that he had paid for a licence to enter and remain on the racecourse to view races, and that this licence was promised not to be revoked. The respondent demurred to this replication.
The legal issues before the court were whether the licence granted for value created a proprietary interest in the land, and if not, whether equity precluded the respondent from effectively revoking the licence. The court was required to consider the applicability of English decisions, particularly *Wood v. Leadbitter* and *Hurst v. Picture Theatres Ltd*, in the context of New South Wales law, which did not have the Judicature Act in force.
The Full Court of the Supreme Court of New South Wales held that the licence, even though granted for value, created only a contractual right and was revocable at common law. It further held that equity did not prevent the effective revocation of this licence. Consequently, the demurrer was upheld, and judgment was entered for the respondent. The High Court affirmed this decision, finding that the licence did not create a proprietary interest and was revocable. The court distinguished *Hurst v. Picture Theatres Ltd*, finding its reasoning flawed and not applicable to the circumstances, particularly in the absence of the Judicature Act in New South Wales.