RESPONDENT PLAINTIFF, Real Property Act 1900 (N.S. W.) (No. 25), secs. 51, 52 -Landlord and tenant-
Transfer of land-Breach of covenant by lessee-Right of transferee of land to sue lessee for breach of covenant in lease which is complete before transfer- Covenant to erect and complete alterations forthwith-Meaning of forthwith." Practice-Pleading-Damages assessed generally upon good and bad counts-Trial
de novo-Costs-Admission by party at trial-Defendant mistakenly admitting liability-Defect appearing upon the record-Appeal.
A right to sue for damages for a breach of covenant, not being a continuing breach, which is complete before transfer, does not pass to the transferee of land under secs. 51 and 52 of the Real Property Act 1900. The object of the Act was to transfer the estate or interest of the transferor in the land with all the rights incidental to present and future possession, but not mere choses in action in respect of past and completed breaches of covenant.
A lessee covenanted to erect and complete alterations and additions of the value of £500 upon the demised premises, and to execute perform and carry out such alterations and additions "forthwith."
Held, that the word "forthwith" in this covenant could not be extended to include a period of 21 months after the date of the lease.
Where damages have been assessed generally upon a good and bad count, the practice at common law is to direct a trial de novo, and not to give either party the costs of the first trial.
Where the plaintiff's right to recover has been admitted at the trial, but by reason of a defect appearing on the record, which is incurable, it is shown that the plaintiff's claim is untenable, the defendant is not precluded from afterwards taking this objection by application to arrest judgment, or for a
Decision of the Supreme Court of New South Wales: Mc Fadyen v. Measures, 10 S.R. (N.S.W.), 190, reversed.
APPEAL by the defendant by special leave from the decision of the Supreme Court discharging a rule nisi for a new trial upon the following grounds:--(1) That the verdict for the plaintiff was against evidence: (2) That the damages were excessive: (3) That the Judge at the trial should have directed a verdict for the defendant on the pleas of cross-action, or one of them (4) That his Honor was in error in holding that the plaintiff was entitled to re-enter for non-payment of rent, notwithstanding the absence of a formal demand, and in directing a verdict for the plaintiff on the third count (5) That his Honor should have held that the breach of the building covenant was not a continuing breach and was waived by the subsequent acceptance of rent: (6) That upon the facts proved the Court of Equity would grant an absolute and unconditional injunction to restrain an action or forfeiture for breach of the building covenant: (7) That no right of action for a past breach 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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Measures v McFadyen [1910] HCA 74
Case
[1910] HCA 74
Decision Date
CaseChat Overview and Summary
In *Measures v. McFadyen*, the High Court of Australia considered an appeal from the Supreme Court of New South Wales concerning a lessee's breach of a covenant to undertake alterations and additions to leased premises. The dispute arose after the lessor transferred their interest in the land to the plaintiff, who then sued the lessee for breaches of covenants contained in the original lease, including a covenant to complete specified building works "forthwith."
The central legal issues before the High Court were whether a right to sue for damages for a breach of covenant, which was complete before the transfer of the land, passed to the transferee under sections 51 and 52 of the *Real Property Act 1900* (NSW), and the interpretation of the word "forthwith" in the context of a building covenant. The court also considered the implications of a general damages award made upon both a good and a bad count in the declaration, and the effect of a defendant's admission of liability at trial.
The Court held that sections 51 and 52 of the *Real Property Act 1900* were not intended to transfer to a transferee mere choses in action arising from past and completed breaches of covenant. The object of these sections was to transfer the estate or interest in the land along with rights incidental to present and future possession. The court found that the covenant to erect and complete alterations "forthwith" could not reasonably be interpreted to allow a period of 21 months for performance, meaning the breach was complete before the transfer of the reversion. Consequently, the plaintiff, as the transferee, could not sue for this past breach.
Given that damages were assessed generally upon both a valid and an invalid count, the High Court ordered a trial de novo, consistent with common law practice. This meant that neither party was awarded the costs of the first trial. The court also noted that where a defect appears on the record rendering a claim untenable, a defendant is not precluded from raising this objection, even if liability was mistakenly admitted at trial.