Randwick-Coogee Legion Ex-Service Club Ltd v Malouf

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning whether a club's premises were "prescribed premises" under the Landlord and Tenant (Amendment) Act 1948-1952 (NSW). The claimant, Mr. Malouf, sought possession of premises leased to the appellant, Randwick-Coogee Legion Ex-Service Club Ltd. The club argued that its premises were "prescribed premises" and thus protected from ejectment proceedings due to the claimant's failure to comply with the Act. The Supreme Court had struck out the club's defence, holding that the premises were not "prescribed premises" as they were "licensed for the sale of spirituous or fermented liquors" and therefore excluded from the Act by an Order in Council.

The central legal issue before the High Court was the interpretation of the phrase "premises licensed for the sale of spirituous or fermented liquors" as used in the Order in Council. Specifically, the Court had to determine whether a club holding a certificate of registration under Part X of the *Liquor Act 1912-1946* (NSW) fell within this exclusion, thereby rendering the premises not "prescribed premises" under the *Landlord and Tenant (Amendment) Act*.

The High Court, in allowing the appeal, reasoned that the *Liquor Act* itself drew a clear and substantial distinction between premises licensed for the sale of liquor and premises registered for club use. The Court found that the Order in Council, by using the term "licensed," was intended to refer to the specific statutory scheme of licensing under the *Liquor Act*, rather than a general authorisation to sell liquor. Unlike a publican's licence, which attaches to premises and confers significant goodwill, a club's registration authorises the secretary to sell liquor to members and their guests, but does not attach to the premises in the same way and does not confer a similar public commercial interest. The Court concluded that the premises of a registered club were not "licensed premises" within the ordinary meaning of the term or the probable purpose of the Order in Council, and therefore remained "prescribed premises" under the *Landlord and Tenant (Amendment) Act*. The Supreme Court's decision was reversed, and the claimant's summons to strike out the defence was dismissed.