Re Marshall & Ors, Ex parte Mighell

This matter concerned an application for a writ of prohibition brought by the applicant, Mighell, against the respondents, Marshall and Ors. The applicant sought to prohibit the respondents, who were acting as trustees of the estate of the late Mr. Marshall, from proceeding with a proposed sale of certain land. The land in question was part of the estate and was subject to a lease granted to the applicant.

The central legal issue before the Court was whether the respondents, as trustees, were entitled to sell the land comprised in the leasehold estate without the consent of the applicant, the lessee. The applicant contended that the leasehold estate was a proprietary interest that could not be extinguished by a sale of the reversionary interest without their consent.

Dawson J considered the nature of a leasehold interest and the rights of a landlord to sell the reversion. His Honour held that the lease granted to the applicant created a proprietary interest in the land, which was not extinguished by the subsequent sale of the reversionary interest by the trustees. The trustees' power of sale extended only to their interest in the land, which was subject to the existing lease. Therefore, any sale would be of the land subject to the lease, and the purchaser would take the reversionary interest burdened by the applicant's leasehold rights.

The application for a writ of prohibition was accordingly granted.