Greater Union Organization Pty Ltd v Pappas

[1967] HCA 17

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

GREATER UNION ORGANIZATION PTY. LTD. v. PAPPAS

(1967) 116 CLR 475

5 June 1967

Landlord and Tenant—Ejectment

Landlord and Tenant—Notice to quit as to the whole of leased premises—Whether right to recover part of premises—Jurisdiction of magistrate—Landlord and Tenant Act, 1899-1964 (N.S.W.), ss. 22 (a), 23*. Landlord and Tenant—Prescribed premises—"Dwelling-house"—Shop and house on same premises—Notice to quit as to whole of premises—Whether part of premises not comprising dwelling house recoverable—Rights and obligations as to part not recovered—Landlord and Tenant (Amendment) Act, 1948-1966 (N.S.W.), ss. 8 (1A)**, 62 (5) (m)**, 70 (2A) (b)**. Ejectment—Recovery of part only of property claimed.

Decisions

June 5.
The following written judgments were delivered:-
BARWICK C.J. The appellant is the proprietor of land at the corner of Spit Road and Clifford Street, Spit Junction, Sydney, on which is erected a building which comprises a picture theatre, operated by the appellant, and eight shops for letting. (at p478)

2. The respondents on 23rd May 1966 were tenants to the appellant of one of these shops - a lock-up shop - and also of a dwelling situated behind one other of the shops and some forty feet away from the shop where they conducted a milk bar. The two premises were let to the respondents at a single rent by the one agreement. (at p478)

3. On 31st July 1964 the Department of Main Roads gave to the appellant notice of its intention to proceed with the widening and reconstruction of Spit Road as soon as possible. The Department's proposal affected the appellant's building as a whole. It necessitated an alteration of the building alignment by some eighteen feet. The appellant was thus involved in the demolition of portion of its building affecting the lock-up shop to a depth of eighteen feet and the separate dwelling, of which the respondents were tenants, to an extent of some eight square feet. (at p478)

4. On 23rd May 1966 the appellant served on the respondents notice to quit the premises the subject of the letting on the ground that they were reasonably required for reconstruction or demolition, particularizing the requirements of the Main Roads Board: see Landlord and Tenant (Amendment) Act, 1948-1964 (the Act) s. 62 (5) (m). At this time the appellant had conceived a plan of reconstructing its building, including the dwelling let to the respondent. Its plan for this reconstruction had been submitted to the Department of Main Roads, but had not been submitted to any local government authority. (at p479)

5. As the respondents did not give possession according to the notice to quit, the appellants laid an information under the Landlord and Tenant Act, 1899-1964 (the 1899 Act) in the appropriate Court of Petty Sessions seeking an order for possession of the whole of the premises let to the respondents. At the same time they filed a statutory declaration in compliance with s. 70A of the Act stating that they would provide and had available alternative accommodation, namely, the dwelling then occupied by the respondents. (at p479)

6. During the course of the hearing of the information, the appellant made it plain that it did not seek an order for possession of the separate dwelling occupied by the respondents. Indeed, as I have indicated, it was this dwelling which the appellant was prepared to make available to the respondent as the accommodation which the magistrate ultimately held was appropriate and available alternative accommodation. Consequently, also during the course of the hearing, the appellant modified its plans for the reconstruction of its building so as to eliminate any work presumably either of demolition or of reconstruction in connexion with that dwelling. (at p479)

7. There is no statement in the case of the purpose for which the premises were let. This can only be deduced from the nature of the premises and the use to which they were in fact put, apparently with the appellant's concurrence. The shop was clearly enough only used as such and the other premises as a dwelling. (at p479)

8. However, apparently feeling himself obliged so to do by the decision of this Court in Thompson v. Easterbrook (1951) 83 CLR 467 , the magistrate regarded himself as bound to treat both premises as let for the purpose of residence because of the inclusion of the dwelling in the lease: see definition of "dwelling-house", s. 8 (1A). Although, as it seems to me such a finding in the end was irrelevant and unnecessary, the magistrate found that, because the plans for the reconstruction of the dwelling had not been approved by the local government authority, he was prevented by s. 70 (2A) (b) from making an order for possession of the dwelling house. As he held that he only had power under the 1899 Act to make an order for possession of all premises included in the notice to quit he therefore dismissed the information. (at p479)

9. At the request of the appellant, the magistrate stated a case for the opinion of the Supreme Court of New South Wales asking whether he had erred in taking this course. In his stated case the magistrate sets out his relevant finding thus: "(c) I held that the basis of my jurisdiction to make an order was s. 23 of the Landlord and Tenant Act, 1899, as amended, and that I was unable to direct the issue of a warrant restricted to part of the property referred to in the notice to quit. I held that if I directed the issue of a warrant I was obliged to direct that same be issued to put the lessor into possession of the whole of the property referred to in the notice to quit notwithstanding the fact that the lessor did not seek to recover possession of the whole thereof, but only that part which was occupied as a shop." The Supreme Court (Court of Appeal Division) answered the question in the negative. The appellant, by its special leave, now appeals to this Court. (at p480)

10. The ground in s. 62 (5) (m) is a reasonable requirement for reconstruction or demolition. In the present case the primary requirement of the appellant was demolition; reconstruction was only consequential upon the need to demolish in order to satisfy the realignment to be enforced by the Main Roads Board. It might well have been thought that there was a reasonable requirement for demolition of the dwelling and that that satisfied the ground, without the Court of Petty Sessions being concerned with the consequential reconstruction, if any. On the other hand, it might have been said that, because only eight square feet was involved, the work to be done in relation to the dwelling was reconstruction as distinct from demolition. But the approval or consent of the local government authority would have been required for the demolition of a dwelling house as well as for its reconstruction: see Local Government Act, 1919 (s. 317BA). (at p480)

11. Because of the confusion which has been introduced into the matter at the hearing and not by any means clarified in the stated case, it seems to me that I should set out the situation with which we are called upon here to deal as I understand it. The appellant by its information sought possession of the whole of the premises included in the notice to quit and thus sought possession of the dwelling but indicated, both by the statutory declaration it filed in compliance with s. 70A and by its attitude during the hearing, that it was content to leave the respondents in possession of the dwelling. The magistrate therefore in the long run was not concerned with any question as to alternative accommodation, or of approval to plans of demolition or of reconstruction of the separate dwelling unless he was bound to conclude that the shop was let for the purposes of residence so as to attract the prohibition of s. 70 (2A) of the Act. If it were right to hold that the shop was a dwelling house, the magistrate was not concerned with the question of his power to order possession of part of the land included in the demise and in the notice to quit. The shop being on that assumption a dwelling house, s. 70 (2A) itself answered the whole problem. (at p481)

12. On the other hand, if he did not conclude that the shop was to be treated as if it were let for the purpose of residence or if he was in error in holding that it was to be so treated, a question would arise as to his power to order possession of only part of the land of which the information claimed possession, or, if it be a different question, his power to order possession of less than the whole of the land included in the demise or in the notice to quit. (at p481)

13. The first matter which must be decided is whether the magistrate was right in considering himself bound as I assume he did to hold that both the premises, and therefore the shop, constituted a dwelling house for the purpose of s. 70 (2A) of the Act. In Thompson v. Easterbrook (1951) 83 CLR 467 this Court had before it a case in which a single building containing a shop and a dwelling connected thereto had been let by the one letting at a single rent. The question posed for the Court was whether or not, as more than one use of the premises was intended, the dominant intended use should be taken as definitive of the question whether the letting was for the purpose of residence within the meaning of the former s. 8 (1) of the Act, or whether it was sufficient that a substantial intended use for residence was included in those purposes. The Court held that the latter sufficed for the application of the definition in s. 8 (1), which for present purposes was not significantly different from that in s. 8 (1A). It therefore decided that because residence was a substantial intended use, the whole of the one building thus let constituted a dwelling house within the meaning of the Act. But this decision does not support the view that where two separate premises are let by the one agreement at a single rent, and one of them is intended to be used for the purposes of residence, the other which in fact is not used or intended to be used as a residence becomes a dwelling house for the purposes of the Act or that both are to be regarded as a dwelling house or dwelling houses. In my opinion, quite clearly that result does not follow from Thompson v. Easterbrook (1951) 83 CLR 467 and it would be erroneous for the magistrate to consider himself bound in this case to regard both the demised premises as a dwelling house, as apparently he did. The proper conclusion was that only the separate residence was a dwelling within the meaning of s. 8 (1A). Section 70 (2A) did not itself preclude the making of an order for possession of the shop. (at p481)

14. The second matter to be decided is whether, as the lock-up shop was not a dwelling house, the magistrate could have made an order for possession of it alone. The magistrate found that the ground of the notice to quit (s. 62 (5) (m)) was made out. Therefore, the notice to quit was effective to terminate the interest of the tenant in both the lock-up shop and in the dwelling house. The facts of the case therefore satisfied the opening words of s. 23 of the 1899 Act whether or not the information be regarded as relating to both premises. The interest of the tenant in all the land held by him of the appellant had been determined by notice to quit. (at p482)

15. The jurisdiction of the magistrate, however, to order possession of that land was not derived solely from the 1899 Act but from a combination of that Act and the Act: see James v. Ronald (1958) 75 WN (NSW) 473 with which decision I respectfully agree. Apart from s. 70 (2A) of the Act the magistrate could have ordered possession of both the shop and the dwelling and, as I have said, that sub-section in terms only prohibits the exercise of the jurisdiction as to the dwelling. (at p482)

16. But being unable, and indeed not asked to order possession of the dwelling, was the magistrate right in refusing to order possession of the shop? Three separate things are said in this connexion. First, that the magistrate could only make an order in conformity with the information as laid or dismiss it. He could not make an order for part of the land comprised in the information. (at p482)

17. Second, that the magistrate could only make an order for possession of all the land comprised in the notice to quit on the non-compliance with which the informant's right to possession arose. Or put another way, that the informant could not seek an order for possession of less than all the land comprised in his notice to quit, which in effect means, for possession of less than all the land included in the one demise. (at p482)

18. Thirdly, that the magistrate's jurisdiction to make an order for part of any land demised is limited to those cases in which the erstwhile tenant is in possession of only that part. This is in reality a variant of the first submission, but supplies what is said to be a separate reason, namely, that upon its proper construction s. 23 of the 1899 Act, in speaking of part of the land refers only to a part where less than the whole is in the possession of the defendant. (at p482)

19. It is rightly submitted that in a case such as the present where the two parcels are the subject of the one lease fixing a single rent, the landlord cannot by notice to quit determine the tenant's interest in only one parcel: the notice must extend to both parcels. Difficulties which arise in connexion with the relationships between the erstwhile landlord and erstwhile tenant with respect to land left in the possession of the latter if possession of part only of the land demised were ordered are pointed to as supporting the view that an order for possession may not be made as to part only of the land demised. I shall return to say something as to these suggested difficulties a little later on. Meantime, I should say that, in my opinion, whatever be the correct conclusion as to those relationships, neither the existence of the suggested difficulties nor the manner of their solution bear on the question whether an order for possession of only part of the land claimed or of the land demised may be made by the Court of Petty Sessions. (at p483)

20. Before coming to the question of the jurisdiction of the Petty Sessions, I ought briefly to refer to the position at common law as at the passing of the Common Law Procedure Act, 1852 (Imp.). (at p483)

21. The position was that a plaintiff in ejectment might succeed as to part only of the land of which by his writ he claimed possession: see Cole on Ejectment, (1857), p. 85. His failure might result from, amongst other things, an inadequacy of proof as to metes and bounds, or as to the physical extent of his right to possession or as to his right to possession itself as to some part of the land claimed. In any of these cases, it seems to me, he would have been entitled to a verdict as to the area of land which could be identified with certainty and as to which he established his right to possession. Neither that verdict nor the judgment entered thereon would debar him from subsequently suing for possession of the remainder nor debar his success if he could then prove his right to possession. (at p483)

22. Judgment in ejectment acts as an estoppel only as to the right to possession of the land, and as of the time, to which it refers. Even where the plaintiff in ejectment has failed as to part of the land of which he claimed possession, the judgment in ejectment is no bar to subsequent proceedings for recovery of possession of that land : see Chitty's Archbold, 10th ed., vol. 11, pp. 1000, 1032 and cases cited. (at p483)

23. The significant question in ejectment was whether the plaintiff had made out a right to possession of the land claimed. By what means or for what reasons he had become entitled to possession was not material except in so far as the facts relating thereto were part of the proof of that right. If A were entitled to possession of Whiteacre and also of Blackacre, his right to possession in each case being deduced in a different manner, he could sue in ejectment for both in the same or each in a separate action. That he acquired his right to possession by the termination of a leasehold interest in the case of Blackacre and by purchase of a freehold in the case of Whiteacre would not signify. Nor could it matter, in my opinion, that he had acquired his right to possession of both properties by the termination of the same leasehold interest. Section 180 of the Common Law Procedure Act, 1852 in stating the issue for the jury in an action of ejectment indicates that a plaintiff could succeed as to part of the land claimed and that section does not suggest any limitation upon the land which a plaintiff may claim. See also s. 220 of the Common Law Procedure Act, 1899 (N.S.W.). (at p484)

24. The English courts have been able to decide that recovery of possession may be had not merely of one of two premises let by the same demise but of part of a single parcel of land the subject of a demise, where the part is sufficiently described. (at p484)

25. In Salter v. Lask (1923) 2 KB 798 ; (1924) 1 KB 754 (CA) , it was decided that a person who had terminated a tenancy as to two parcels could obtain judgment with respect to one of them at least where he had already obtained possession of the other. In Gidden v. Mills (1925) 2 KB 713 it was decided that a person who had leased a single parcel of land might recover possession of a building erected by the tenant upon part of that land. In that case, the part of which possession was sought was described with sufficient certainty by reference to the building upon it. On the balance of the land demised, a dwelling was erected. Statutory provisions prevented the making of an order for its possession and the tenant remained in possession of it. Both these cases were decided in proceedings commenced in the County Court and did not involve any question of the jurisdiction of the County Court. (at p484)

26. On the other hand, the Victorian courts dealing with proceedings under the petty sessions legislation of that State have tended to the view that an order for possession of part of the premises in a single demise cannot be made. If the tenant is to be left in possession of a definable part, the result, it is said, must be achieved by a dismissal of the information conditionally upon the tenant yielding up that part of the premises which the informant requires and to which he is entitled to possession : see Sharpe v. Young (1954) VLR 586 ; Sharpe v. Young (No. 2) (1955) VLR 74 ; Turner v. Faraone (1952) VLR 318 ; Nillson v. Blitz (1955) VLR 24 ; Nelson v. Healy (1948) VLR 415 . (at p484)

27. However, I can find no reason in principle why a person entitled to the possession of two parcels of land formerly let by the same demise should not proceed for an order for possession of one, leaving the other in the possession of an erstwhile tenant, either to await subsequent proceedings for possession or subsequent negotiations for a new consensual arrangement to cover such a possession or, as I mention later, an apportionment of rent. Certainly nothing in common law or the Common Law Procedure Act suggests the contrary. (at p485)

28. However, the jurisdiction of the magistrate in petty sessions comes as I have said from a combination of the 1899 Act and the Act. (at p485)

29. The jurisdiction initially given by s. 23 did depend on the circumstances under which the informant obtained his right to possession of the land claimed but because of its subsequent alliance with the Act the jurisdiction of the petty sessions to order possession is not now limited to those circumstances. It seems to me that the petty sessions may now order possession, as s. 62 (3) of the Act says, of any prescribed premises, howsoever the right to possession is derived, unless the Act prohibits the making of such an order in the particular circumstances of the case : s. 2A of the 1899 Act should also be noticed in this connexion. But, of course, a right to possession must be made out and in the instant case was made out by the expiry of a valid and effective notice to quit. (at p485)

30. Two different questions could arise in connexion with the magistrate's jurisdiction : first, the question whether when an informant seeks possession of all the land earlier the subject of a single tenancy, an order can be made for that part only in respect of which he can make out a right to an order for possession or in respect of which alone he ultimately seeks an order. The second is whether an informant may seek by his information possession of part only of such land, whether or not he could make out a title to an order for possession of the balance and whether or not the erstwhile tenant is in possession of the whole. Unless the information were amended, the second question does not really arise in this case. (at p485)

31. Of course, s. 23 contemplates the possession by the defendant of the land claimed in the information and authorizes the making of an order for possession of land in his possession. But this does not, in my opinion, involve the conclusion that the informant must in his information claim all the land in the possession of the defendant to the possession of which the informant may have any claim or right. Of course, if the land claimed is not so certainly described or identifiable that an order for its possession may be made, the magistrate will for that reason refuse an order for its possession. The possibility of such a result may in practice tend against a claim for part only of the land in the possession of the defendant. But that possibility is not concerned with the jurisdiction of the magistrate to hear and determine an information claiming less than the whole of the land in the defendant's possession. Nor does it, in my opinion, involve the conclusion that the informant must claim possession of all the land in the possession of the defendant to the possession of which the informant is entitled by reason of a right to possession derived from the termination of a single demise. (at p486)

32. Section 23 makes it clear that an information may be laid, though the defendant is not in possession of the whole of the land demised. But, in my opinion, in allowing the informant to sue for possession of less than the whole of the land demised, the section upon its true construction, was not confining him to the whole of that part of which the defendant was in actual occupation. Having regard to the purpose of Pt IV of the 1899 Act to facilitate the recovery of land by an erstwhile landlord, I am of opinion that the section should not be read narrowly. In its economy of language the legislature, in my opinion, employs the word "such" in sub-s. (1) in the first place with no more significance than to refer generally to land which has been the subject of a tenancy and to the possession of which the informant has become entitled in one or more of the described ways and at the end of the sub-section as in sub-s. (2) as referring to the land the subject of the information. In so concluding, I am not unmindful of a grammatical construction which would not support my conclusion : but I do not think that such a construction in this instance really expresses the legislative intention. Its adoption would produce consequences which would seriously impair the attainment of the evident purpose of the provision. The section requires the information to be laid for the petty sessions district where "such" land is situate. If this be not a reference to the land claimed in the information but a reference to the whole of the land in the demise, then if that land extends over two or more petty sessions districts, the landlord is denied the summary remedy, though he is able to identify the several parts of the land with adequate certainty. In a case where two parcels are comprised in the one demise but are in different petty sessions districts, unless the informant is able to lay an information in each district each as to one parcel, he would be unable to use Pt IV to recover the possession of any part of his land. In my opinion, however, upon the proper construction of the section, in the case supposed, he could do so and each magistrate could order possession of the parcel wholly within his district, though it is not the whole of the land demised. Again, if the informant in that case mistakenly lays an information in the same petty sessions for both parcels, the magistrate, having no jurisdiction to make an order as to the parcel out of his district, can none the less, in my opinion, make an order for possession of the parcel in his district, though it is less than the whole of the land claimed by the informant, less than the whole of the land demised, less than the whole of the land to which the notice to quit related and less than the whole of the land in the possession of the defendant. (at p487)

33. There is also the case of a defendant who goes out of possession of part of the land claimed between the time the information is laid and the hearing. It could scarcely be said that the magistrate could not make an order in respect of that land of which the defendant retained possession. In that case the very description of it may sufficiently define the land. In none of these cases is there, in my opinion, any need to amend the information : indeed, in some of them it might well be inappropriate to do so. (at p487)

34. In my opinion, the section does not limit the informant in respect of the land of which he may choose to seek possession nor, in my opinion, does it prescribe the land of which the magistrate may order possession except that it be land in the possession of the defendant, of which formerly he was a tenant, to the possession of which the informant has become entitled by effluxion of a term or by notice to quit or demand of possession. It thus seems to me also quite clear that in a case where the possession of two parcels is claimed by the information, and the petty sessions is prohibited by statute from making an order for the possession of one, it is able to make an order for the possession of the other. Further, where an informant having laid an information claimed possession of two parcels ultimately asks only for an order for the possession of one, to the possession of which he makes good his claim, the magistrate, in my opinion, may make such an order. (at p487)

35. Nor do I see any valid objection to the magistrate making an order for the possession of a definable part of a single parcel of land claimed in any of the circumstances I have mentioned. (at p487)

36. What I have so far said relates to s. 23 standing alone. But when the jurisdiction given by s. 23 is enlarged by the provisions of the Act, as I have already mentioned, the conclusions I have expressed as to the magistrate's power to order possession are, in my opinion, fortified. The case is therefore simply one in which the informant sought possession of all the land to which the notice to quit referred, and the magistrate was prohibited by the Act from making and indeed was not asked to make an order for part of that land. Nothing in the Act prevented him from making an order for possession of the remainder. (at p488)

37. There remains for brief mention the position of an erstwhile tenant who is left in possession of part of the land demised. The present case probably offers little difficulty, for the respondents wish to remain as such and the appellant appears to be content that they should. Apart from the operation of the Act - with which I am not concerned to deal - either a tenancy at an apportioned rent or a right to use and occupation arises out of the consensual situation. In a case where the retention of possession of part of the land is not with the consent of the landlord the erstwhile tenant will remain a trespasser liable to separate proceedings for recovery of possession subject of course to the provisions of the Act. The general position is dealt with in Halsbury's Laws of England, 3rd ed., vol. 23, pp. 556-557, pars. 1221 and 1223. However, as I have already indicated, whatever difficulties may arise on recovery of part only of the land demised do not affect the question of the power of the magistrate to order possession of such part. (at p488)

38. In my opinion, the appeal should be allowed and the question asked in the stated case answered in the affirmative. (at p488)

McTIERNAN J. I have had the advantage of reading the judgment of my brother Kitto and I agree with his conclusion and reasons. (at p488)

KITTO J. By information laid in accordance with s. 23 of the Landlord and Tenant Act, 1899-1964 (N.S.W.) the appellant company sought against the respondents an adjudication that it was entitled to possession of two portions, some forty feet apart from one another, of a building owned by the appellant which had a frontage to Spit Road, Mosman, and a warrant for possession accordingly. The information was dismissed, and an appeal to the Supreme Court by way of case stated was dismissed by the Court of Appeal of that Court. (at p488)

2. The case stated describes the premises the subject of the proceedings as comprising a lock-up shop and a separate dwelling, and as "prescribed premises being a dwelling-house within the meaning of the" 1948 Act. The Act by s. 8 (1A), so far as material, defines "dwelling-house" as meaning any prescribed premises leased for the purposes of residence. Though the fact is not expressly set out in the case stated, which is framed with a regrettable lack of precision, there is a clear implication that although the lock-up shop and the dwelling were together the subject of one demise at a single rent the former was leased for the purposes of a shop and the latter for the purposes of residence. There was no finding that the purposes for which the lock-up shop was leased were in truth a part of the purposes for which the dwelling was leased, and the description of the subject premises as a dwelling house within the meaning of the Act cannot possibly mean that the magistrate intended any such finding. The only way to read the description seems to be as a conclusion of law, that is to say as a conclusion that because one of the two demised premises was a dwelling house the two together must for some legal reason be considered as a dwelling house. That this is what is meant is confirmed by the magistrate's statement of the grounds upon which the appellant contended that his decision was erroneous in point of law; and the argument we have heard puts it beyond doubt that throughout the case a view prevailed that this Court in Thompson v. Easterbrook (1951) 83 CLR 467 had laid it down upon the construction of the Act that where two premises are comprised in the one lease and one is let for the purposes of residence they are both let for that purpose. (at p489)

3. The notice to quit had necessarily been given in respect of both parts of the building, but in order to be effectual to terminate the tenancy as regards a "dwelling-house" it had to be given upon one or more of the prescribed grounds : s. 62 (2), (3). In fact it purported to be given for the whole of the demised premises upon the ground prescribed by s. 62 (5) (m), namely that the premises were reasonably required by the lessor for reconstruction or demolition. Particulars were appended indicating, in effect, that the lessor had received notice from the Department of Main Roads of its intention to widen and reconstruct Spit Road in a manner which required the demolition of the appellant's building to a depth of eighteen feet from the building alignment, that the demolition would affect an unspecified portion of the demised premises, and that the appellant desired to reconstruct the rest of the building, incorporating it in other buildings. Though the language used was somewhat confusing, its meaning, I think, was that the work which the lessor intended to carry out affected both the shop and the dwelling. At the hearing this became clear from plans which were produced in the lessor's case. The magistrate held that the ground alleged was made out, and that the notice to quit was effectual to determine the tenancy. (at p489)

4. The respondents, resisting the proceedings, relied in particular upon s. 70 (2A) (b) of the 1948 Act by which it is provided that an order for the recovery of possession of any prescribed premises being a dwelling house, on the ground specified in s. 62 (5) (m), shall not be made unless the court is satisfied that, where it is necessary to obtain the approval under any Act of any body to the carrying out of the work referred to in the notice to quit, that approval has been obtained. The demolition and reconstruction referred to in the notice to quit was, on the face of the document, such as to require the approval of the local municipal council, and the appellant did not prove that it had obtained that approval. It was plain, therefore, that no order could be made for possession of the dwelling, for it, at least, was a "dwelling-house". The appellant then produced amended plans which provided only for the demolition and reconstruction of a portion of the building which included the lock-up shop but not the dwelling, and asked the magistrate (thereby impliedly, if not expressly, asking for any appropriate amendment of the proceedings) to direct the issue of a warrant for recovery of possession of the shop alone. This the magistrate refused, holding that his jurisdiction depended upon s. 23 of the Act of 1899-1964 and that on the true construction of that section he had no power to direct the issue of a warrant restricted to part only of the property referred to in the notice to quit. Accordingly he dismissed the information. (at p490)

5. The case stated submitted to the Supreme Court the question whether the dismissal was erroneous in point of law, and the learned Judges of Appeal held that it was not. They based their decision, however, not upon the provisions of s. 23 of the 1899 Act but upon the provisions of the 1948 Act. Their Honours accepted the view that Thompson v. Easterbrook (1951) 83 CLR 467 had decided that in the application of the definition of "dwelling-house" in s. 8 (1A) to mean any prescribed premises leased for the purposes of residence, shop premises and residential premises demised by a single lease must be regarded as both being leased for the purposes of residence and therefore as together constituting a "dwelling-house". This, however, they treated as immaterial. They considered that s. 70 (2A) (b) should be construed as applying in such a case in respect only of the work, referred to in the notice to quit, which was to be carried out upon the residential portion of the premises; and they held that the dismissal of the information was right because on the magistrate's finding, that the work referred to in the notice to quit in this case was work to be done upon the dwelling as well as the shop, the prohibition contained in s. 70 (2A) (b) applied to the case. (at p490)

6. It is necessary to say at once that the judgment in Thompson v. Easterbrook (1951) 83 CLR 467 should not be understood as laying down the wide proposition for which it has been used. The case was one in which a shop and living quarters, leased by the one instrument, were separated from one another by a fibrous partition only (a detached shed was included but was plainly accessory), and the question was whether the right conclusion from all the circumstances was that the whole was leased for the combined purposes of residence and of use as a shop, or that the one portion was leased for the former purposes and the other for the latter. In the judgment of this Court reference was made to the fact that the notice to quit had attempted to divide the premises into their two components, purporting to be given, so far as the living quarters alone were concerned, upon the ground prescribed by s. 62 (5) (g) (ii), namely that those quarters, being a dwelling house, were reasonably required for occupation by the lessors in their trade, calling and occupation. The court said that obviously premises comprised in one letting could not be subdivided into two portions in the manner proposed in that ground; that is to say that the notice to quit had to be effectual with respect to the demised premises as a whole or not at all. But not only were the shop and the living quarters let by the one instrument; they were let, as the magistrate had found, "for the purposes of a shop and dwelling". What was laid down as to the application of the definition of "dwelling-house" was that a leasing of two parcels together, where the circumstances indicate that it is a leasing for a dual purpose, is not a leasing of one parcel for one purpose and of the other parcel for the other purpose; it is one leasing for both purposes, and this is so even when one of the purposes is the principal or dominant purpose - although if one purpose be that the residential portion may be used for purposes of residence as part of a user of the whole for non-residential purposes, as in the case of a building containing a caretaker's living quarters as part of a large city store, the proper conclusion would be that the whole is leased for the purposes of the store. (at p491)

7. The present case, on the magistrate's findings, is of quite a different kind. The lease was of two parts of a building, not contiguous with one another, and there was nothing in the terms of the lease or in the circumstances to suggest that both parts were leased for a single purpose or combination of purposes. The only conclusion for which any basis could be found was that the shop was leased as a shop and the residential portion of the building was leased for residence. In my opinion it was not open to the magistrate to hold that the shop and the dwelling together constituted a "dwelling-house", or that the provisions of s. 70 (2A) with respect to "any prescribed premises being a dwelling-house" applied to the shop. (at p492)

8. On this view of the matter there was nothing in the 1948 Act to prevent the magistrate from making an order under ss. 62 (3) and 69 for the recovery of possession of the shop. His jurisdiction, however, existed by the combined operation of those provisions and the provisions of Pt IV of the 1899 Act, particularly s. 23 of that Act, and the question arises whether it was so restricted by s. 23 that because the lock-up shop and the dwelling were let by the one instrument and possession of both was retained by the respondents at all material times, the magistrate had no power to make an order for possession of the shop alone. (at p492)

9. It appears from such cases as Sharpe v. Young (1954) VLR 586 and Sharpe v. Young (No. 2) (1955) VLR 74 , to which we have been referred, that in Victoria it is widely considered that under the comparable legislation there in force (see s. 69 of the Landlord and Tenant Act 1928 (Vict.)), an order for possession must be made either for the whole of the demised premises or for none; and some ground for that view may be seen in the language of the section. But the New South Wales section is differently framed, following more closely, but still with some departures, the terms of the Imperial Act 1 &2 Vict. c. 74, which may be found in Cole on Ejectment (1857) pp. 666 et seq. Sub-section (1) is expressed to apply where the term or interest of the tenant of "any land", held by him for any term of years or for any less estate or interest, has expired by effluxion of time or has been determined by notice to quit or demand of possession, and such tenant or any person claiming under him who is actually occupying "such land or any part thereof" neglects to quit and deliver up possession "of such land or of such part thereof respectively". The sub-section provides for the exhibiting of an information whereupon a summons is to issue against the person so neglecting to quit and deliver up possession, requiring such person to appear before justices, at the place where the petty sessions of the district in which "such land" is situated usually sit, to show cause why the landlord should not be put into possession of "such land". The next sub-section is expressed to apply if, on the hearing of the summons, due proof is given of the holding (of the term or interest of the tenant), of the expiration or determination of the tenancy, and that the landlord has, and had when the summons was served, lawful right as against the tenant or occupier to the possession of "such land", and that the tenant or occupier was the tenant in possession or the actual occupier of "such land" at the time of the service of the summons. This proof having been given, the justices are authorized, unless reasonable cause is shown to the contrary, to adjudge the landlord entitled to possession of "such land" and to issue a warrant authorizing officers to enter (by force if needful) into "such land" and to give possession of "the same" to the landlord. There is no great difficulty in giving the expression "such land" the same meaning wherever it is used in the section, for where the landlord has obtained possession of a part though not of the whole of the land firstly mentioned in the section there is no misuse of language in speaking of giving him possession of the whole. In fact the form of adjudication in Schedule E to the Act uses such a form of words. The respondents' contention is that if the intention had been that a part only of the land which the tenant held under the tenancy might be selected to be treated in the application of the section as the firstly-mentioned land, there would have been no need for the section to make specific provision for recovery of the part which is still adversely occupied. Bearing in mind that the word "land" is defined by s. 22 (a) to mean "land, houses, or other corporeal hereditaments", I should think the answer is that no reason appears for limiting the generality of the expression "any land" in s. 23 further than by confining it to any land, houses, or other corporeal hereditaments which are objectively distinguishable from other lands as forming a subject for possession as a separate entirety. I would agree that the section probably does not contemplate proceedings with respect to whatever portion of the demised premises the landlord cares to select and describe, but I see no reason to deny, at least in a case like the present where the letting was of hereditaments separated from one another by an interval of space, that the remedy under the section is separately available in respect of any one of those hereditaments which is occupied wholly or partly by the former tenant or a person claiming under him. (at p493)

10. In my opinion, therefore, the magistrate should have made the adjudication and the order for the issue of a warrant of possession in respect of the lock-up shop alone. (at p493)

11. I would allow the appeal and answer the question in the stated case: Yes. (at p493)

TAYLOR J. This is an appeal from an order of the Full Court which answered in the negative a question raised by a magistrate in a case stated upon the application of the appellant. (at p493)

2. It appears from the case that the appellant was the lessor and the respondent was the lessee of certain premises which consisted of a lock-up shop and separate dwelling quarters situated in a building known as the Kings Theatre in Spit Road, Mosman. This building comprised a motion picture theatre and eight shops and some other accommodation. The premises the subject of the lease is one of these shops and dwelling quarters which are separate and distinct from the shop and situated some forty feet away. The lease, which had created a tenancy from week to week, was determined by a notice to quit given by the appellant on the ground that the premises were reasonably required for reconstruction or demolition. The particulars of this ground specified that the Department of Main Roads had served on the lessor notice of its intention to proceed with the widening of Spit Road and that the work would affect the Kings Theatre building including the premises occupied by the respondent. The street widening, it was said, required the demolition of the building fronting Spit Road to a depth of approximately eighteen feet and the lessor intimated that he desired to obtain possession of the subject premises in order that portion might be demolished and the premises reconstructed on the land not needed for street widening. It seems that the land upon which the shop was situated would be affected to a depth of eighteen feet and the dwelling by the excision of approximately eight square feet of space. (at p494)

3. The notice to quit with these particulars seems to have been given by the appellant in the mistaken belief that the premises the subject of the lease did not include dwelling quarters. But upon the hearing before the magistrate the appellant produced modified plans which indicated that it did not propose immediately to demolish any part of the dwelling quarters and it intimated that it did not seek an order for the recovery of possession of those quarters. (at p494)

4. This modification of the appellant's application was induced by the fact that it had discovered that part of the leased premises was a dwelling house within the meaning of the landlord and Tenant (Amendment) Act, 1948-1966 (N.S.W.) and by a consideration of s. 70 (2A) (b) of that Act. This section is in the following terms: (at p494)

5. "(2A) Notwithstanding anything contained in this section, an order for the recovery of possession of any prescribed premises, being a dwelling-house, on the ground specified in paragraph (m) of subsection five of section sixty-two of this Act shall not be made unless the court is satisfied - . . . . (at p494)

6. (b) that, where it is necessary to obtain the approval under any Act of any body to the carrying out of the work referred to in the notice to quit, that approval has been obtained . . . ." (at p495)

7. The fact was that admittedly the local council's approval to the plans for reconstruction was necessary and approval had not been obtained at the date when the application was heard so that an order for the recovery of possession of the entire premises, including the dwelling house, could not be made. Moreover the magistrate held, inter alia, that he could not pursuant to the provisions of s.23 of the Landlord and Tenant Act, 1899-1964 (N.S.W.), make an order, as the appellant sought, for the recovery of possession of the shop alone. No challenge is, or could be, made to the first proposition and it seems to me appropriate that we should treat the case as one in which the appellant sought an order for possession of the shop alone. (at p495)

8. The magistrate also took a view which, if correct, was fatal to the appellant's application in any form. He held that the whole of the premises constituted a dwelling house and, consequently, that the failure to obtain the approval of the council, either to the original plans or to the plans as modified, precluded the making of an order. Presumably, this view was founded upon a misconception of what was decided in Thompson v. Easterbrook (1951) 83 CLR 467 , which the Full Court subsequently said decided "that a shop and dwelling is a dwelling-house within the meaning" of the Act, that is to say, "that where there is a shop and dwelling, the subject of a single letting, there is a dwelling-house . . .". The Full Court did not, however, act on this view but decided, in effect, that it was necessary for the appellant to establish that it had obtained approval to the work of reconstruction set out in the particulars accompanying the notice to quit and that since it had been found as a fact that those proposals would affect the dwelling house the magistrate had rightly refused to make the order. (at p495)

9. The first remark which I should make with respect to these observations is that Thompson v. Easterbrook (1951) 83 CLR 467 did not decide, simply, that a shop and dwelling, when the subject of a single demise, together constitute a dwelling house within the meaning of the Act. The question to be solved in that case was whether premises, which comprised a single and indivisible unit, were capable of a notional division into a shop and dwelling house and it was observed that "If the conclusion be that residence was either the sole purpose or one of several purposes which the parties should be held to have contemplated, the premises must be held to be 'leased for the purposes of residence'; but a conclusion that residence was a purpose of the letting is not open where the parties are considered to have had in view no residence except as part of the enjoyment of the entire premises for non-residential purposes". The conclusion was that upon the facts stated, "the premises were leased to the respondent for the twofold purpose of business and residence. Each was obviously an end in itself; neither was merely accessory to the other. The premises were as surely leased for the purposes of residence as for the purposes of business". In the present case the premises consisted of two separate and distinct units - the shop and the dwelling quarters - and it can be asserted that, beyond doubt, the dwelling quarters were, within the meaning of s.8 (1A) of the Act, leased for the purposes of residence and that the shop was not. Accordingly, it is clear enough that the dwelling quarters constituted a dwelling house within the meaning of the Act and that the shop did not. (at p496)

10. It is, at least, implicit in the reasons of the Full Court that this is substantially the view upon which that Court ultimately acted but it was erroneous to say that because the particulars given with the notice to quit would, if the proposals were fully carried out, have affected the dwelling house and those proposals had not been the subject of approval by the local council, the applicants were bound to fail. It was open to the appellant to give its notice to quit before approval, the notice to quit was given in accordance with the Act and it operated to determine the tenancy (s.67). This consequence did not authorize the appellant to take any steps for the recovery of possession of the premises otherwise than in accordance with s.62 of the Act. By virtue of this section the only course open to it was to take proceedings in a court of competent jurisdiction for an order for possession. Courts of petty sessions are, of course, courts of competent jurisdiction (s.69) and the jurisdiction they exercise in making orders for the recovery of possession is that which is conferred by s.23 of the Landlord and Tenant Act, 1899-1964. (at p496)

11. Section 23 (1) of that Act provides that : "When the term or interest of the tenant of any land held by him for any term of years, or for any less estate or interest . . . has expired by effluxion of time or has been determined by notice to quit or demand of possession, and such tenant or any person claiming under him who is actually occupying such land or any part thereof neglects to quit and deliver up possession of such land or of such part thereof respectively, the landlord of such land or his agent may exhibit his information before any justice of the peace, who shall thereupon issue a summons . . . under his hand against the person so neglecting to quit and deliver up possession, requiring such person to appear before any two or more justices of the peace at the place where the petty sessions of the district in which such land is situated usually sit to show cause why such landlord should not be put into possession of such land." (at p497)

12. In all the circumstances of the case it seems to me that the question is whether, having regard to the provisions of this section and of the provisions of the Landlord and Tenant (Amendment) Act, 1948-1966, it was competent for the magistrate to make an order for possession of the shop alone. Beyond question the section authorizes the making of an order, in some circumstances, for the recovery of part of the land the subject of a demise. But it may be thought that the reference to part of the land was intended to provide for cases where the lessee has surrendered possession of part of the demised land to the lessor, or, has otherwise ceased to occupy part of the land, but has remained in possession of the remainder. It is, of course, unlikely that the legislature directed its attention to the question whether successive proceedings should be available for recovery of different parts of the same demised land. That this is so is, I think, apparent when the section is closely examined. Relevantly it purports to deal with the situations which arise where a lease has been determined by notice to quit and the tenant who is occupying the land or part of it neglects to quit and deliver up possession of such land or part of it. The contention, in effect, is that the section should be read reddendo singula singulis and, accordingly, that a tenant who remains in occupation of the whole of the land demised and who neglects to quit and deliver it up in accordance with a notice to quit is not, in the context in which they are used, fairly or accurately described by the expressions a tenant who is actually occuping part of the land or as a person who has neglected to quit and deliver up possession of such part. But it seems to me that this line of reasoning does not, necessarily, lead to the conclusion that when a lease, in which two distinct sets of premises are the subject of the one demise, has been effectively determined and the lessor is precluded by a statutory provision, such as s.70 (2A) (b), from obtaining an order for possession of one set of premises, the jurisdiction of a court of petty sessions does not extend to the making of an order for the recovery of possession of the other set. Apart from s.70 (2A) (b) the magistrate might have made an order for possession of both sets of premises; the respondents were in possession of both and had neglected to quit and deliver up possession. But in the circumstances as they existed s.70 (2A) (b) precluded the making of an order for possession of the premises constituted by the dwelling house alone; it did not, however, stand in the way of an order being made in respect of the premises constituted by the shop. Now s.62 (3) of the Act provides that, subject to Pt III, "a lessor may take proceedings in any court of competent jurisdiction for an order for the recovery by him of any prescribed premises (or of any goods leased therewith) if the lessor, before taking the proceedings, has given to the lessee, upon one or more of the prescribed grounds . . . notice to quit in writing for a period determined in accordance with section sixty-three of this Act, and that period of notice has expired". By s.69 it is provided that for the purposes of s.62 of the Act courts of petty sessions, and those courts only, shall be courts of competent jurisdiction. It seems to me that having regard to these provisions the jurisdiction of the magistrate did not depend upon a consideration of s.23 of the Landlord and Tenant Act, 1899-1964 alone; rather, it depended upon that section as it must be taken to have been adapted to meet the requirements of the Landlord and Tenant (Amendment) Act, 1948-1966. In other words the latter Act has operated to create situations to which s.23 may be seen to be applicable. For instance, it may be observed that by s.62 (3) of the latter Act the authority of the magistrate is to extend to the making of an order for the recovery of goods leased with premises. But for present purposes it should be noticed that the authority of the magistrate extends to the making of orders for the possession of any premises and where separate and distinct premises are the subject of a single demise I can see no reason to doubt that an order for the recovery of possession of one set of premises may be made notwithstanding that the Act precludes the making of such an order with respect to the other set. No doubt if an order for possession of the shop should be made questions may arise as to the respective rights and obligations of the parties in respect of the dwelling house. However, these questions do not arise for decision in the present case and it is not only unnecessary but undesirable that we should express any opinion upon them. (at p498)

13. In the circumstances I am of the opinion that the question raised by the case stated should be answered in the affirmative. (at p498)

WINDEYER J. There is an obvious distinction between a single thing adapted to serve a dual purpose, and two things each adapted to serve only a single purpose. The distinction seems to have been lost sight of, sometimes, in attempts to apply the decision of this Court in Thompson v. Easterbrook (1951) 83 CLR 467 to situations in which it could have no application. Yet the principle has been often perceived. It was, for example, expressed clearly by Sugerman J.A. when in Ex p. Goetz; Re Geddes (1966) 2 NSWR 162, at p 165 , his Honour distinguished a demise of premises which "although put to more than one use, were themselves single and indivisible" from the case of "the subject of a demise of two distinct types of premises". The question whether premises are for relevant purposes a separate unit let with other premises is primarily a question of fact. It depends upon their character. It is not answered by asking simply are they physically detached from some other building? That is a relevant, but not a decisive, consideration. Two houses in a terrace separated by a party wall might be leased by the one lease to the same tenant for a single rent; yet one could be a dwelling house, the one next door a shop. Two floors in a block of flats are parts of the same building being under the same roof, yet one may be a dwelling house and the other not, notwithstanding that both are leased by the one lease to the same tenant. The question of "what constitutes the unity of a house" as Lord Halsbury expressed it in Grant v. Langston (1900) AC 383, at p 391 , has arisen often enough in other contexts than that of the landlord and tenant laws of New South Wales. I refer to that case and to Nicholls v. Malim (1906) 1 KB 272 and In re Butler; Camberwell (Wingfield Mews) No. 2 Clearance Order, 1936 (1938) 2 KB 210 , as illustrations, out of many which might be cited. (at p499)

2. The only relevant effect of a lease of two or more units for an entire rent is, so far as I can see, that the landlord cannot by notice to quit determine the tenancy of some only of them: a notice to quit must extend to the whole; if given for a part only of the totality of the demised lands, it will be void: Doe d. Rodd v. Archer (1811) 14 East 245 (104 ER 595) ; Woodward v. Earl of Dudley (1954) Ch 283 . The common-law principle can produce difficulties when, as by the Landlord and Tenant (Amendment) Act, 1948-1966 (N.S.W.), a notice to quit can only be lawfully given on prescribed grounds some of which may be applicable to some of the premises but not to others. It seems that the legislature has not adequately provided for that situation; but the questions which could arise do not arise in the present case. Here, there were in fact two physically separate premises, one a dwelling house, the other a lock-up shop. They were let together in the one lease as a dwelling house and shop. That could not make the shop a dwelling house nor the dwelling house a shop. (at p499)

3. Without setting out the course of events, fully narrated in other judgments, I can pass at once to the question of the jurisdiction of the magistrate. The proceedings were taken under s.23 of the Landlord and Tenant Act, 1899-1964, pursuant to s.2A (2) of that Act and ss.62 (3) and 69 of the Landlord and Tenant (Amendment) Act, 1948-1966. The magistrate said: "I held that the basis of my jurisdiction to make an order was s.23 of the Landlord and Tenant Act, 1899 as amended, and that I was unable to direct the issue of a warrant restricted to part of the property referred to in the notice to quit . . . notwithstanding the fact that the lessor did not seek to recover possession of the whole thereof, but only that part which was occupied as a shop." (at p500)

4. Section 23, so far as relevant, is as follows: (at p500)

5. "23 (1) When the term or interest of the tenant of any land held by him for any term of years, or for any less estate or interest . . . has expired by effluxion of time or has been determined by notice to quit or demand of possession, and such tenant or any person claiming under him who is actually occupying such land or any part thereof neglects to quit and deliver up possession of such land or of such part thereof respectively, the landlord of such land or his agent may exhibit his information before any justice of the peace, who shall thereupon issue a summons . . . under his hand against the person so neglecting to quit and deliver up possession, requiring such person to appear before any two or more justices of the peace at the place where the petty sessions of the district in which such land is situated usually sit to show cause why such landlord should not be put into possession of such land. (at p500)

6. (2) If at the time and place appointed in and by such summons . . . such landlord or such agent gives due proof according to law . . . (inter alia) that the tenant or occupier against whom such summons is issued was the tenant in possession or the actual occupier of such land at the time of the service of such summons, then . . . the said justices, or the majority of them, unless reasonable cause is shown or appears to them to the contrary, may - (at p500)

7. (a) adjudge the landlord by or for or on whose behalf such information shall be exhibited entitled to possession of such land; and (at p500)

8. (b) . . . (at p500)

9. (c) issue a warrant . . . directed to the constables and peace officers of or acting in or for the district or place within which such land is situate . . . to enter (by force if needful) into such land and to give possession of the same to such landlord or such agent on his behalf . . . ." (at p500)

10. The jurisdiction of justices under s.23 is now exercisable by a stipendiary magistrate. (at p500)

11. The question which was argued before us is whether, having regard to the references to "such land or any part thereof" and later to "such land", the magistrate can make an order for the recovery of part only of the lands demised when the tenancy of the whole was terminated by notice to quit. This question, considered purely as a matter of statutory construction, is one on which members of this Court take differing views ; and I need hardly say that I appreciate that it is debatable. (at p501)

12. It seems to me, however, that the question becomes clear and the answer to it is supplied by asking how, if the section were to be further punctuated, one would punctuate sub-s. (1). Would the relevant part read "and such tenant, or any person claiming under him who is actually occupying such land or any part thereof, neglects to quit and deliver up possession of such land or of such part thereof respectively . . ." ? - I think so. That seems to me to indicate the correct construction. The alternative reading, "such tenant . . . who is actually occupying", would be clumsy to say the least. The history of this section supports the reading I suggest. Its history begins with its archetype in England, the Small Tenements Recovery Act, 1838 (1 &2 Vict. c. 74). The purpose of that Act was, as its preamble states, "to provide for the more speedy and effectual recovery of the possession of premises unlawfully held over after the determination of the tenancy". Summary proceedings before justices were provided as an alternative remedy to the cumbrous procedure of an ejectment action in which Doe or some other fictitious lessee alleged that he had been wrongfully ousted by a casual ejector. But the new remedy was not available for the recovery of land generally. The Act applied only to small tenancies, to premises let for not more than seven years at a rent not exceeding twenty pounds a year. The jurisdiction arose when the term or interest of a tenant had expired by effluxion of time or notice to quit - "and such tenant or (if such tenant do not actually occupy the premises, or only occupy a part thereof,) any person by whom the same or any part thereof shall be then actually occupied shall neglect or refuse to quit and deliver up possession of the premises or of such part thereof respectively". The landlord or his agent could thereupon proceed before the justices against the "tenant or occupier" ; and if he should "still neglect or refuse to deliver up possession of the premises or of such part thereof of which he is then in possession to the said landlord or his agent" the justices might issue a warrant to constables "to enter (by force if needful) into the premises and give possession of the same to such landlord or agent". In the passages quoted above from the statute I have italicized some words presently significant. The punctuation is as printed in the Statutes at Large ; in Cole on Ejectment, and in other works, including Woodfall on Landlord and Tenant, the Act is printed with additional commas. (at p502)

13. In 1847 the Legislative Council of New South Wales copied the English statute in the Summary Ejectment Act (11 Vict. No. 2). Unlike the English original the colonial Act was not limited to tenancies of small value ; but otherwise its wording was in essentials the same. The statute of 1847 was repealed in New South Wales in 1853, and a new Summary Ejectment Act (17 Vict. No. 10) was enacted. Section 2 of that Act became s. 23 of the present Act when the statute law of New South Wales was consolidated in 1899. The remedy it provides is available only as against the tenant and an occupier "claiming under him". This, it has been said, gives the Act a more limited operation than its predecessors had : Ex p. Fergusson (1890) 11 NSWLR 43 ; and see Dalby v. Gazzard (1949) 78 CLR 375 ; Mouton v. Abbott (1949) 49 SR (NSW) 305 . One change made in 1853 and continued by s. 23 may seem significant. It is that the words in parenthesis - "if such tenant do not actually occupy the premises or only occupy a part thereof" - which appeared in the 1847 Act have been omitted. But I do not think that the meaning has been altered. And others, who have ventured to insert commas in printing s. 2 of the 1853 Act or s. 23 of the 1899 Act, have taken the same view : see Cary, Statutes of New South Wales, and Wilkinson, Australian Magistrate, 7th ed. (1903). (at p502)

14. For these reasons I consider that the reference in s. 23 to "such land or any part thereof" is directed to a case when some person claiming under the former tenant is the occupier of part. It may also be applicable in a case where the tenant has already yielded up part of the subject land to the landlord but refuses to vacate the remainder. But to my mind the reference to "part" cannot upon the true construction of the section be taken as an authority to a magistrate to make an order in respect of part only of a single parcel of land in proceedings brought to recover the whole from a tenant actually occupying the whole. But that does not I think mean that the magistrate could not in this case make an order for possession of the shop alone. (at p502)

15. The opening words of s. 23 are "when the term or interest of the tenant of any land", and the references thereafter in the section are to "such land". The phrase "any land" must, I think, be taken to mean any distinct parcel of land lying within a petty sessions district - "land" being defined as meaning "land, houses or other corporeal hereditaments" (which was the definition of "premises" in the English Act of 1838). It is, of course, always necessary that "the land" sought to be recovered by order of a magistrate should be a separate parcel or holding which can be described in the information with sufficient particularity to be identified : see the forms of information in Schedule E of the Act ; also the form of warrant of possession issued to the constable, which is equivalent in effect to a writ habere facias possessionem by which a judgment for the plaintiff in ejectment was executed. But I do not see why any separately identifiable parcel of land which was let to a tenant, either by itself or with other separate parcels of land, cannot be "any land" within the meaning of s. 23. As this Court pointed out in Royal Sydney Golf Club v. Federal Commissioner of Taxation (1955) 91 CLR 610, at pp 625, 626 , a parcel of land may be identified as a separate unity in several ways, by occupation, by being contained in one title deed, by enclosure by fences, by being in one ownership, "or by the fact that it is used by one occupier for a single purpose or combination of purposes". The view that the expression "any land" does not mean all lands comprised in one demise is emphasized by the jurisdiction of magistrates being limited to the petty sessions district where the land is. The legislature when it enacted s.69 of the Landlord and Tenant (Amendment) Act, 1948-1966, seems to have overlooked the obstacle in the way of a landlord wishing to assert his rights in respect of prescribed premises if those premises be an indivisible entity lying on the border of a petty sessions district. But the difficulty does not occur in this case ; and perhaps it would not often occur. (at p503)

16. In the present case the magistrate could in my opinion have allowed the information and summons to be amended to enable the appellant to proceed only in respect of the shop and not the dwelling house, treating the shop alone as being the land within the description "any land". Section 32 of the Act expressly authorizes an amendment of an information or summons under s. 23 (see too the Justices Act, 1902-1957 (N.S.W.) s. 65). And by s. 33 the forms set out in Schedule E are merely authorized, not required, to be used in carrying out the provisions of the Act. However, I do not think any amendment was necessary to enable an order to be made for the recovery of possession of the shop alone. (at p503)

17. We were referred to Salter v. Lask (1923) 2 KB 798 ; (1924) 1 KB 754 (CA) . There proceedings in ejectment were taken in a country court in England. The facts were peculiar ; but they bear a resemblance to the present case. There were three separate premises, two adjoining houses and a workshop behind, all in one demise. The case turned on statutory provisions very different from those here in question. Nevertheless it is noteworthy for the statement that at the expiration of a tenancy a landlord who has resumed possession of part of what was demised can sue to recover another part which is being withheld from him. But further than that I do not think the decision goes. Atkin L.J. said (Salter v. Lask (1924) 1 KB 754, at p 761 ) : "I see no reason why a reversioner suing in ejectment, when a tenancy has been determined by effluxion of time or notice to quit, and when he has resumed possession of part of the demised premises, should not recover possession of the remainder. It is not necessary to determine how the case would stand if the tenant still remained in possession of the part not sought to be recovered." (at p504)

18. The present case, however, is not one in which a landlord who has obtained possession of one part of the premises seeks to recover the rest. It is the other way round. A landlord, not in possession of any part of the lands demised, sought the whole, but when met by a statutory obstacle as to an identifiable part, he was prepared to accept an order in respect of the rest. I do not see that such an order could not be made under s. 23. In an ejectment action in the old form the plea of not guilty was distributable. If the plaintiff claimed too much, the verdict could be found and judgment given in his favour in respect of so much as he might prove he was entitled to have. This at all events was so if the plaintiff made it clear at the trial that he was prepared to treat his claim as severable and to have judgment for any tenement separately from the rest : see the dicta of Lord Abinger C.B. in Anderson v. Chapman (1839) 5 M &W 483, at p 488 ; (151 ER 204, at p 207) ; Doe d. Davenport v. Rhodes (1843) 11 M &W 600 (152 ER 945) and the comments thereon in Doe d. Bowman v. Lewis (1844) 13 M &W 241 (153 ER 100) . Counsel pointed out to us that in the modern law of ejectment as contained in the Common Law Procedure Act and dating from 1852, this matter is dealt with expressly, whereas, on the construction of s. 23 which I have adopted, there is no express provision for the landlord recovering a part only of what he sues for in proceedings before justices. But I can see no reason in general principle why a person who claims to recover premises to which he is entitled is to be prevented from having them because he claimed them along with other premises which he cannot recover. In New South Wales a landlord who seeks to recover prescribed premises must proceed before a magistrate. He is no longer able to proceed in ejectment in the Supreme Court. But this procedural restriction does not in my opinion affect his substantive rights. It is still appropriate to quote a sentence of Lord Uthwatt's, spoken of the English Act of 1838, the ancestor of s. 23. "I would only add", said his Lordship, "that an Act creating a new jurisdiction to hear a certain type of case should not lightly be construed as authorizing the withholding of a remedy in a case properly brought before it, when in other courts, to which resort might equally well be had, the remedy would follow as of course" : Shelley v. London County Council ; Harcourt v. Same (1949) AC 56, at p 70 . (at p505)

19. It was said that, because the rent under the lease was an entire rent, not apportioned between the two premises, there would be a practical difficulty in making an order for possession of the shop alone, leaving the dwelling house in the possession of the tenant. The contractual tenancy created by the lease was brought to an end by the notice to quit. If the landlord cannot recover possession of the dwelling house, because he does not offer alternative accommodation elsewhere, then the tenant remains in possession, but as a "statutory tenant", not as lessee. He must pay for his being there - call it rent, or for use and occupation, or what you will. If the parties do not agree on what sum is to be paid it can be determined by an appropriate court, by action if necessary as in Swansea Corporation v. Thomas (1882) 10 QBD 48 . The amount to be paid would, I assume, be determined according to the general principles of apportionment of rent applicable when there is a cessation of possession of part of leased premises: see Halsbury's Laws of England 3rd ed., vol. 23, p. 557. Ligertwood J., in Benger v. Hegarty, Gardiner and Whittenbury (1950) SASR 293 recognized these principles as applicable. In any event any difficulties in working out the consequences of the statutory right of occupation of the dwelling house cannot affect the landlord's right to recover possession of the shop. (at p505)

20. I would allow the appeal, and answer the question in the stated case - Yes. (at p505)

Orders

Appeal allowed with costs including costs of application for special leave. Order of the Supreme Court discharged. In lieu thereof order that the question in the case stated be answered in the affirmative and remit case to the magistrate. Order that the respondents J. and G. Pappas pay the costs of the proceedings in the Supreme Court including the costs of the preparation of the stated case.