Flannagan v Milne - [1919] HCA 49

[ ] FLANNAGAN MILNE Licensing-Lessor and lessee-Early closing-Adjustment of rent-Sufficiency of

notice-Waiver-Licensing Acts Further Amendment Act (No. 2) 1915 (S.A.) (No. 1236), secs. 72, 73.

Sec. 72 of the Licensing Acts Further Amendment Act (No. 2) 1915 (S.A.) provides that "A lessee of any licensed premises may, within two months after the commencement of this Act, or within such further time, not exceeding six months after such commencement, as the President " of the Industrial Court " may allow, give to the owner of such premises notice in writing that, by reason of his pecuniary loss consequent on the operation of the Licensing Act Further Amendment Act 1915" (by which (inter alia) the time for closing hotels was fixed as 6 p.m. instead of 11 p.m.), 4.4 he desires that the amount of the rent payable under any lease, existing at the commencement of this "Act, under which such lessee holds the said premises, or relating thereto, shall be adjusted as from the commencement of the said Act." Sec. 73 provides that (1) If the said lessee (having given notice under see. 72 of this Act) and the said owner do not, within one month after the giving of the said notice, agree as to the adjustment to be made, the said lessee may, within

27 CLR 2

two months after the giving of the said notice, or within such further time as the President may allow, make application in writing to the President to adjust the amount of the rent payable as mentioned in the said sec. 72."

Held, that the notice required by sec, 72 need not follow the strict language of the section, and therefore that a notice in which the licensee said 44 under secs. 72, 73 and others of the Licensing Acts Further Amendment Act (No. 2) 1915 I hereby apply to have the rent of the" particular licensed premises " reduced," was a sufficient notice.

Held, also, on the facts, that even if the notice was insufficient the owner had waived any objection to it.

Toronto Corporation v. Russell, (1908) A.C., 493, applied. Decision of the Supreme Court of South Australia reversed.

APPEAL from the Supreme Court of South Australia.

John Henry Flannagan, who was the licensee of the Imperial Hotel, Adelaide, which he held on a sub-lease, dated 12th November 1908, from George Milne (the lessee of Harry Esmond Rymill), Arthur Graham Rymill and Sydney Rymill, by notice dated 13th October 1916 applied to the President of the Industrial Court pur- suant to the Licensing Acts Further Amendment Act (No. 2) 1915 to adjust the amount of the rent payable by him under his lease. That notice, by par. 3, alleged that the applicant had given notice in writing to Milne, on 23rd May 1916, "that by reason of my pecuniary loss consequent on the operation of the Licensing Act Further Amendment Act 1915 I desired that the amount of rent pay- able under" the lease "should be adjusted." On…

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.

Continue reading Flannagan v Milne

Details

AGLC: Flannagan v Milne [1919] HCA 49
Case: [1919] HCA 49
Decision Date: 3 October 1919

CaseChat Overview and Summary

Flannagan, the licensee of the Imperial Hotel, sought to have his rent adjusted under the Licensing Acts Further Amendment Act (No. 2) 1915 (SA). He had given a notice to Milne, his lessor, which the Supreme Court of South Australia found to be insufficient under section 72 of the Act. The Supreme Court had allowed Milne's appeal from a decision of a Stipendiary Magistrate who had found the notice sufficient and had allowed the application for rent adjustment. Flannagan appealed this decision to the High Court of Australia.

The legal issues before the High Court were whether the notice provided by Flannagan to Milne was a sufficient notice in writing as required by section 72 of the Licensing Acts Further Amendment Act (No. 2) 1915, and if not, whether Milne had waived any objection to its insufficiency. Section 72 permitted a lessee to give notice to the owner of licensed premises if, by reason of pecuniary loss consequent on the operation of the 1915 Act, the lessee desired an adjustment of rent. Section 73 outlined the procedure for applying to the President of the Industrial Court if no agreement was reached.

The High Court held that the notice given by Flannagan, stating "Under secs. 72, 73 and others of the Licensing Acts Further Amendment Act (No. 2) 1915 I hereby apply to have the rent of the Imperial Hotel reduced," was a sufficient notice. The Court reasoned that the Act did not prescribe a strict form for the notice and that substantial compliance was sufficient. The reference to the relevant sections, coupled with the clear intent to seek a rent reduction, made it a necessary inference that the application was due to pecuniary loss consequent on the Act. Furthermore, the Court found that even if the notice had been technically insufficient, Milne had waived any objection. This conclusion was based on Milne's conduct, including his subsequent application under section 76 of the Act which referenced Flannagan's original notice, and his delay in raising objections for over two years, demonstrating an acceptance of the notice's sufficiency. The appeal was allowed, the Supreme Court's order was discharged, and the Stipendiary Magistrate's order was restored.

Orders