Massart v Blight

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose between the lessors, Mr. and Mrs. Blight, and the assignee of a lease, Mr. Massart. The lessors sought to recover possession of a block of eight flats based on several grounds under the *Landlord and Tenant (Amendment) Act 1948-1949* (N.S.W.), including the assignee's failure to obtain consent for the assignment of the lease, which contained a covenant against assigning without the lessor's consent.

The legal issues before the High Court included whether an assignment of a lease in breach of a covenant against assigning without consent constituted a ground for recovery of possession under section 62(5)(b) of the Act, and the extent to which a magistrate's discretion regarding hardship could be reviewed. Specifically, the court had to determine if the assignee's acquisition of the lease through an assignment that breached a lease covenant could be relied upon by the lessors to obtain possession, and how the statutory provisions regarding hardship applied in such circumstances.

The High Court considered the operation of sections 62(5)(b) and 62(10) of the *Landlord and Tenant (Amendment) Act 1948-1949* (N.S.W.) in relation to assignments made in breach of a lease covenant. It was held that an assignment in breach of a covenant against assigning, even if the assignee was aware of the breach, did not render the assignment nugatory but rather exposed the lease to forfeiture. The court also clarified that the discretion of a magistrate concerning hardship under section 70(1)(a) could only be interfered with on appeal if an error of law was committed or if the discretion miscarried to the extent that the conclusion could not be supported in law. The Supreme Court had previously found the magistrate's refusal to make an order for possession to be erroneous in law, leading to this appeal.

The High Court allowed the appeal, reversing the decision of the Supreme Court. It found that the magistrate had correctly refused to make an order for possession. The court determined that section 62(5)(b) of the Act did not provide a ground for possession against an assignee based solely on the assignment being in breach of an express covenant, particularly when the lease contained such a covenant. Furthermore, the court held that the assignee's acquisition of the lease through a breach of covenant did not preclude consideration of hardship, and that the magistrate's assessment of greater hardship favouring the assignee was not an error of law.