Landlord and Tenant (N.S.W.)—Prescribed premises—Death of lessee—Statutory right of adult child residing with lessee to continue in possession—Amendment narrowing class of protected persons—Whether right to possession of adult child divested—Statute—Amendment—Whether repeal—Effect of general saving provisions in interpretation statute—Landlord and Tenant (Amendment) Act, 1948 (N.S.W.), s. 83A (1) (b)*—Landlord and Tenant Act, 1968 (N.S.W.), s. 4 (h) (i)—Interpretation Act of 1897, s. 8*.
Decisions
1971, March 4. The following written judgments were delivered: BARWICK C.J. On 14th September 1958 Patrick O'Brien, then a lessee of prescribed premises within the meaning and operation of s. 83 of the Landlord and Tenant (Amendment) Act, 1948 (N.S.W.), died. His married daughter, an only child, a respondent to this appeal, and her husband, formerly a respondent to this appeal but now deceased, then resided with her father in the prescribed premises and on his death remained in possession of them. Section 83A (1) and (2) inserted in the Landlord and Tenant (Amendment) Act by s. 3 (e) of the Landlord and Tenant (Amendment) Act, 1952 as enacted was in the following terms:
"83A. (1) Where a lessee of prescribed premises dies, and (a) the spouse of the lessee resided with the lessee immediately before the death of the lessee and is actually in possession of the premises immediately
after the death of the lessee ; or (b) where the spouse of the lessee was not so residing or is not so in possession or the lessee was not married at the date of his death, a child of the lessee (being a child of or over the age of twenty-one years) so resided and is so in possession, such spouse or child, as the case may be, shall, subject to
subsection two of this section and until probate or letters of administration of the estate of the deceased lessee are granted, have the like right to continue in possession of the premises as the deceased lessee would have had if he had not died. In this subsection 'child of the lessee' means, where more than one child of the lessee so resided and is so in possession, the elder or eldest of such children. (2) Proceedings may be taken against such spouse or child, . . . for the recovery of possession of the premises from him in accordance with the provisions of this Act as if he were a lessee of the premises. (3) Nothing in this section affects any right which such spouse or child may have upon the grant of probate or letters of administration to continue in possession of the premises."(at p 3)
2. By the Landlord and Tenant (Amendment) Act, 1968 s. 83A was amended in a number of respects. In some instances, as for example in relation to par. (d) of sub-s. (1), which had been inserted by the Landlord and Tenant (Amendment)…
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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AGLC
Mathieson v Burton [1971] HCA 4
Case
[1971] HCA 4
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning a dispute between the appellant, Mathieson, and the respondent, Burton, regarding the interpretation of a clause in a deed. The central issue revolved around whether the respondent had validly exercised an option to purchase certain land.
The court was required to determine the proper construction of clause 12 of the deed, specifically whether the notice of exercise of the option was effective in its form and content. This involved an examination of the requirements for valid notice under the terms of the agreement and the general principles of contract law concerning the exercise of options.
The majority of the High Court held that the notice of exercise was defective. Their Honours reasoned that the clause required the option holder to give notice of their intention to purchase the land and to specify the price at which they wished to purchase it. The notice provided by the respondent did not specify a price, and therefore, it did not comply with the conditions precedent to the valid exercise of the option. The court applied the principle that where a contract requires a specific form of notice for the exercise of an option, that form must be strictly adhered to.
Consequently, the High Court allowed the appeal and set aside the order of the Supreme Court of New South Wales. The court declared that the respondent had not validly exercised the option to purchase the land.