Dalby v. Gazzard - [1949] HCA 36

DALBY AND ANOTHER

GAZZARD AND ANOTHER

RESPONDENTS. DEFENDANTS, Landlord and Tenant-Weekly tenancy-Termination of tenancy-" Protected

person let into possession by outgoing tenant-No consent by landlord-

Claiming under the lessee "-Defence (Transitional Provisions) Act 1946-1947 (No. 77 of 1946-No. 78 of 1947)-National Security (War Service Moratorium) Regulations (S.R. 1941 No. 61-1948 No. 109), reg. 30 (6).*

The requirement expressed in the words " claiming under the lessee' used in reg. 30 (6) of the National Security (War Service Moratorium) Regulations is not satisfied merely by the fact that the protected person has been let into possession by the lessee. The lessee must have conferred upon or imparted to the person in possession some right or title which but for the determination of the lease would have entitled that person to possession of the premises. 30 (6) (b) Where a tenancy has

or has committed waste; (d) that the been lawfully determined and a person

protected person has been guilty of claiming under the lessee and actually

conduct which is a nuisance or annoy- in possession of the premises or any

ance to adjoining or neighbouring part thereof is a protected person, an

occupiers; (e) that the protected per- order for the ejectment of persons

son or some other person has been con- from those premises or for the recovery

victed, while the protected person was of possession of those premises shall not

actually in possession of the premises be enforced against the protected

or part thereof, of an offence arising out person unless the court which made

of the use of the premises or part there- the order is satisfied-(a) that the pro-

of for an illegal purpose or that a court tected person has failed to pay the rent

has found or declared that the premises in respect of a period of not less than

or part thereof have, while the pro- fifty-six days; (b) that the protected

tected person was actually in possession person has failed to perform or observe

of the premises or part thereof, been used for some illegal purpose; (f) that tenancy and the performance or

the premises-(i) being a dwelling- house-are reasonably required by the dition has not been waived or excused

person in whose favour the order was by his landlord; (c) that the pro-

made for occupation by himself or by tected person has failed to take

some person who ordinarily resides reasonable care of the premises, or of

with, and is wholly or partly dependent any goods the property of his landlord,

upon, him; or (ii) not being a dwelling

78 CLR 376

Paragraphs (a), (b) and (c) of reg. 30 (6) of the National Security (War Service Moratorium) Regulations make it incumbent on a protected person in posses- sion to fulfil towards the lessor the obligations which the protected person had incurred, if he himself be a sub-lessee, to his sub-lessor, so that he must perform his obligation with reference to rent, terms and conditions, care of…

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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Details

Case: [1949] HCA 36
Decision Date: 18 August 1949

CaseChat Overview and Summary

The appellants, Mr Dalby and his wife, sought possession of a flat from the respondent, Sheila Gazzard, who was their weekly tenant. The tenancy had been determined by notice to quit. However, the respondent, John Gazzard, a protected person under the National Security (War Service Moratorium) Regulations, was in actual occupation of the flat, having been let into possession by Sheila Gazzard. The magistrate found the appellants entitled to possession against Sheila Gazzard but ordered that the warrant of possession not be executed against John Gazzard, on the basis that he was a protected person claiming under the lessee. The appellants appealed this latter part of the order to the High Court.

The central legal issue before the High Court was the interpretation of the phrase "claiming under the lessee" as used in regulation 30(6) of the National Security (War Service Moratorium) Regulations. This regulation provided that an order for possession should not be enforced against a protected person in actual possession unless certain conditions were met. The court had to determine whether John Gazzard, who had been permitted to occupy the flat by the tenant but had not been granted any formal right or title to possession, satisfied this requirement.

The High Court considered two competing interpretations of "claiming under the lessee." The first, a broader view, suggested that simply being let into possession by the lessee was sufficient. The second, a more limited view, required the lessee to have conferred some right or title upon the person in possession, which would have entitled them to remain in possession but for the determination of the head lease. The Court favoured the more limited interpretation, reasoning that the purpose of regulation 30(6) was to protect a protected person whose right to possession was derived from and dependent upon the lessee's interest. In this case, John Gazzard had been granted a licence to occupy the premises by Sheila Gazzard, but this licence did not constitute a right or title that he could claim under after the determination of her tenancy.

The High Court allowed the appeal, holding that John Gazzard was not a person "claiming under the lessee" within the meaning of regulation 30(6). Consequently, the protection afforded by that regulation did not apply to him. The Court therefore ordered that the warrant of possession could be executed against John Gazzard.

Orders