Palmer v Rutter

15 CLR 729

PALMER AND OTHERS

APPELLANTS; DEFENDANTS, RUTTER

RESPONDENT. INFORMANT,

ON APPEAL FROM THE SUPREME COURT OF Landlord and tenant-Tenancy- - Creation of tenancy a breach of trust-Right - to

recover possession-Landlord and Tenant Act of 1899 (N.S. W.) (No. 18 of 1899), sec. 23.

A building was erected on land which was vested in trustees upon certain trusts by a Crown grant which contained a provision that, if the trustees should alienate or attempt to alienate the land, whether in fee simple or for any lesser estate or interest, the grant should become void. A building was erected on the land in accordance with the trusts, and a room in it was let to a certain tenant. The Supreme Court of New South Wales having held that possession of the room might be recovered under sec. 23 of the Landlord and Tenant Act of 1899:

Held, that special leave to appeal to the High Court should be refused. Special leave to appeal from the decision of the Supreme Court of New South Wales: Ex parte Palmer, 12 S.R. (N.S. W.), 756, refused.

APPLICATION for special leave to appeal.

An information was exhibited whereby George Rutter, as agent for the Trades and Industrial Hall and Literary Institute Associa- tion of Sydney Limited (hereinafter called "the Association") alleged that George C. Palmer and George Entwistle and Frederick

15 CLR 730

W. Hecht, trustees of the Federated House and Ship Painters,

Paperhangers and Decorators Employés Association of Australia, New South Wales Branch (hereinafter called the defendants), held from the Association, by virtue of a tenancy from month to month, a room in the Trades Hall, Goulburn Street, Sydney that the tenancy had been determined by notice to quit, and that the defendants had neglected to quit and deliver up possession; and the informant asked that the Association might be put into pos- session of the room pursuant to the Landlord and Tenant Act of 1899. A summons calling upon the defendants to show cause why the Association should not be put into possession was there- upon issued, and was heard at the Water Police Court, Sydney.

It appeared that the land on which the Trades Hall was erected was granted by the Crown to certain trustees. By the Crown grant it was provided that the trustees should hold and use, or allow the land and the buildings to be erected thereon to be at all times maintained and used, as and for a Trades Hall and Literary Institute, for the use of artificers and operatives of Sydney. It was further provided that, if the trustees should alienate or attempt to alienate the land, whether in fee simple or for any less estate or interest, except by way of transfer to new trustees, the grant should become void and it should be lawful for the Crown to re-enter.

The Association, a limited liability company, was formed, as was stated in the memorandum of association, to erect a Trades Hall on the land for any purposes consistent with the Crown grant. The Association erected the building accordingly. The executive committee of the Association, of which the trustees of the land were ex officio members, purported to let the room in question to the defendants at a weekly rental.

After the evidence was heard, a warrant was directed to issue for putting the Association into possession. An order nisi for prohibition was obtained by the defendants, and was discharged by the Full Court: Ex parte Palmer 1.

The defendants now applied for special leave to appeal to the High Court from that decision.

112 S.R. (N.S.W.), 756.

15 CLR 731" text-full="15 CLR 731" text-short="15 CLR 731">15 CLR 731

Armstrong, for the defendants. The Association could not create an interest in the land inconsistent with the terms of the grant, and a lease of a room in the building is such an interest.

[GRIFFITH C.J.-The - Association are entitled to possession of the room, and the only question is whether the right procedure has been adopted to obtain that possession.]

Per curiam. Special leave to appeal will be refused.

Special leave to appeal refused. Solicitor, A. C. Roberts.

[HIGH COURT OF AUSTRALIA.] GANS

RILEY AND OTHERS

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Contract-Rescission-Unconscionable bargain-Evidence. In an action to set aside an agreement for a sale of property on the grounds that the price was grossly inadequate, and that it was made under circum- stances of oppression almost amounting to actual fraud, judgment was given for the defendants. On appeal to the High Court,

Held, that the appeal should be dismissed on the ground that the evidence did not establish either that the price was grossly inadequate or that there was fraud, and on the further ground that, as the parties could not be restored in integrum, the plaintiff's only remedy would be an action in the nature of

This matter concerned an application for special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellants, trustees of a union, were defendants in proceedings brought by the respondent, an association, seeking possession of a room in a building known as the Trades Hall. The association had let the room to the trustees on a month-to-month tenancy, which it claimed to have lawfully determined by notice to quit. The trustees had failed to vacate the room, leading to the association's application for recovery of possession under the Landlord and Tenant Act of 1899 (NSW).

The central legal issue before the Supreme Court, and subsequently before the High Court on the application for special leave, was whether the association could lawfully grant a tenancy of a room within the Trades Hall. This question arose because the land on which the Trades Hall was built was subject to a Crown grant with a specific condition: the grant would become void if the trustees alienated or attempted to alienate the land, or any lesser estate or interest therein, except for transfers to new trustees. The association, which had erected the building, had purported to let the room to the trustees.

The High Court, in refusing special leave to appeal, implicitly affirmed the Supreme Court's reasoning. The court considered that the association, as the entity that had erected the building and was in possession of it, was entitled to grant possession of a room. The argument that the tenancy constituted an alienation of an interest in the land contrary to the Crown grant was not considered sufficiently arguable to warrant a full appeal. The court focused on the immediate right to possession, suggesting that the procedural mechanism under the Landlord and Tenant Act was appropriate for the association to regain possession of the room from the trustees.

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