Owen v Woolworths Properties Ltd - [1956] HCA 67

RESPONDENT

WOOLWORTHS PROPERTIES LIMITED

RESPONDENT- RESPONDENT, Landlord and Tenant-Fair Rent-Commercial premises-Determination-Appeal

Stated case-Point of law-Not taken before magistrate-Necessity to raise point clearly in case stated-Capital value of premises-Land and buildings-Federal SYDNEY,

land tax-Imposition and abolition-Landlord and Tenant (Amendment) Act Aug. 30, 31;

1948-1954 (N.S.W.) (No. 25 of 1948-No. 46 of 1954), SS. 20 (2) (3) (4)* 21 (1). MELBOURNE,

Section 21 (1) of the Landlord and Tenant (Amendment) Act 1948-1954 provides :- Subject to section twenty of this Act, in determining the fair rent a Fair Rents Board shall have regard to- Tenant (Amendment) Act 1948-1954 provides :-

the dwelling house, whichever is the 20. (1) Where an application has

later, upon the improvement or struc- tural alteration of the dwelling house fair rent of any prescribed premises

(but not including decoration, main- other than shared accommodation, the

tenance or repairs). Fair Rents Board may, after making

(3) Where the Fair Rents Board is such enquiries and obtaining such

of opinion, having regard to the reports (if any) as it considers necessary,

matters specified in section twenty-one and after considering any representa-

of this Act, that the rent as at the tions made by any persons whose rights

prescribed date is insufficient, the may be affected by the determination,

determination may increase the fair determine the fair rent of the prescribed

rent (in addition to any other amount premises.

by which it is increased under this (2) Subject to sub-sections three

section) by an amount not exceeding and four of this section, the determina-

the amount which, in the opinion of tion shall not increase the fair rent of

the Fair Rents Board, is the amount any dwelling house by such an amount

of the insufficiency. that the annual rental thereof would

(4) The determination may increase be increased by more than six per centum of the sum which the Fair

is satisfied that, by reason of an error Rents Board is satisfied was necessarily

or omission, an injustice has been expended by the lessor since the pre-

occasioned by the last determination."

96 CLR 155

(a) the capital value of the premises at the prescribed date, or, if the

premises were not in existence on that date, on the date on which the erection of the premises was completed; (b) the annual rates and insurance premiums paid in respect of the Held, (1) that the capital value of the premises" in par. (a) means the value of the land and of the buildings erected thereon; (2) although par. (b) does not mention land tax it is a matter which may be taken into account by a fair rents board in reaching its determination of a fair rent of premises, as S. 21 (1) is not an exhaustive statement of outgoings to be considered by such a board in making a determination.

Sub-sections (3) and (4) of S. 20 of the Landlord and Tenant (Amendment) Act 1948-1954 being no more than qualifications of S. 20 (2) 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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Details

Case: [1956] HCA 67
Decision Date: 19 October 1956

CaseChat Overview and Summary

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 from a determination of the fair rent of commercial premises by a Fair Rents Board. The landlord, Woolworths Properties Limited, had applied for the determination, and the tenant, Nancy Owen, was dissatisfied with the outcome. The tenant appealed to the Supreme Court by way of a case stated, and both parties subsequently sought leave to appeal to the High Court.

The legal issues before the High Court included whether the Supreme Court erred in entertaining a point of law not explicitly raised before the magistrate, the proper interpretation of "premises" in relation to capital value for rent determination, and whether land tax was a relevant consideration for a Fair Rents Board. Additionally, the court considered the applicability of certain subsections of the *Landlord and Tenant (Amendment) Act 1948-1954* (N.S.W.) to commercial premises, and whether the Supreme Court was correct in setting aside the magistrate's determination on this basis, despite the point not having been contested by the tenant at the initial hearing.

The High Court held that the Supreme Court erred in entertaining the point regarding the applicability of sections 20(3) and 20(4) of the *Landlord and Tenant (Amendment) Act 1948-1954*. The Court reasoned that while the Supreme Court correctly identified that these subsections applied only to dwelling houses and not commercial premises, this point was not clearly raised in the case stated and had been treated as common ground between the parties before the magistrate. The Court emphasised that an appellant must ensure that any point of law sought to be raised on appeal is clearly stated, and that the Supreme Court should not entertain points that might have been met by further evidence or reconsideration at the initial hearing, particularly when there was no real prospect of a different outcome. The Court also indicated that the capital value of "premises" included both land and buildings, and that while land tax was not explicitly mentioned in section 21(1), it could be a matter for consideration by a fair rents board as the section was not exhaustive of all outgoings.

The High Court allowed the landlord's appeal, set aside the order of the Supreme Court, and ordered that the matter be remitted to the Fair Rents Board for reconsideration in accordance with the High Court's judgment. The Court found that the Supreme Court ought not to have entertained the point regarding the applicability of sections 20(3) and 20(4) given the circumstances.

Orders