Morris v English Scottish and Australian Bank Ltd

The case of *Morris v English Scottish and Australian Bank Ltd* concerned an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute arose from a landlord's attempt to recover possession of business premises from a tenant, John Boyd Morris, who was a protected person under the *Landlord and Tenant (Amendment) Act 1948-1954* (N.S.W.). The landlord, the English, Scottish and Australian Bank Ltd., had served a notice to quit on two grounds: firstly, that the premises were reasonably required for the landlord's occupation under section 62(5)(g)(ii) of the Act, and secondly, that the premises were reasonably required for reconstruction or demolition under section 62(5)(m) of the Act. A magistrate had dismissed the landlord's information, finding that while both grounds were established, an order for possession could not be made due to the tenant's protected status and the lack of suitable alternative accommodation, and also by reason of the Privy Council decision in *McKenna v. Porter Motors Ltd.*.

The legal issues before the High Court were primarily concerned with the interpretation of sections 62(5)(g)(ii) and 62(5)(m) of the *Landlord and Tenant (Amendment) Act 1948-1954* (N.S.W.) and whether the decision of the Privy Council in *McKenna v. Porter Motors Ltd.*, which dealt with similar provisions in New Zealand legislation, was binding and applicable to the New South Wales Act. Specifically, the court had to determine if the ground for reconstruction or demolition (section 62(5)(m)) was limited in scope, particularly when the landlord intended to occupy the premises after reconstruction, and how this interacted with the ground for the landlord's own occupation (section 62(5)(g)(ii)) and the protections afforded to a protected person.

The High Court, in allowing the appeal, found that the New South Wales Act and the New Zealand Act in *McKenna v. Porter Motors Ltd.* were sufficiently similar in their relevant provisions, despite some differences in wording, such that the Privy Council's interpretation of the grounds for recovery of possession should be applied. The Court noted that the Privy Council's decision had been influenced by an earlier dictum of Williams J. in *Burling v. Chas. Steele & Co. Pty. Ltd.*, and that the Privy Council's pronouncement was binding. Therefore, the Court concluded that the magistrate had erred in dismissing the information on the basis that the *McKenna* decision prevented the landlord from relying on ground (m) when the premises were required for reconstruction for the landlord's own occupation. The Court indicated that the interpretation of ground (m) by the Privy Council was more limited than previously understood in New South Wales, and that a landlord seeking possession for reconstruction for their own occupation should proceed under ground (g)(ii), but that the *McKenna* decision dictated a particular construction of ground (m) that was binding.

The High Court allowed the appeal, discharged the order of the Supreme Court, and ordered that the magistrate's determination dismissing the information was erroneous in point of law, thereby dismissing the appeal from the Court of Petty Sessions.