Rowston v Sydney County Council - [1954] HCA 66

SYDNEY COUNTY COUNCIL

ON APPEAL FROM THE SUPREME COURT OF Landlord and Tenant-Notice to quit-Validity-Lease-Rent-day-Thursday-

Monday used by parties for several years-Operation of statute-Exemption- Practice of State courts-Disturbance by High Court-Landlord and Tenant Act 1899-1948 (N.S.W.), SS. 22A, 26, 27-Landlord and Tenant (Amendment) Act 1948-1952 (N.S.W.), S. 6-Conveyancing Act 1919-1943 (N.S.W.), S. 127.

Section 22A of the Landlord and Tenant Act 1899-1948 (N.S.W.), which for the purposes of proceedings in courts of petty sessions for recovery of possession creates certain presumptions as to the existence of a tenancy and its duration, does not apply to proceedings in ejectment commenced by a landlord in the Supreme Court or a District Court, where after an adjudication by a magistrate, the tenant, pursuant to S. 26 of the Act, gives security to defend an action in ejectment. Willshire v. Dalton (1948) 65 W.N. (N.S.W.) 54, referred to.

Section 127 (1) of the Conveyancing Act 1919-1945 (N.S.W.) provides :- 46 No tenancy from year to year shall, after the commencement of this Act, be implied by payment of rent; if there is a tenancy, and no agreement as to its duration, then such tenancy shall be deemed to be a tenancy determin- able at the will of either of the parties by one month's notice in writing expiring at any time "

Held that the application of this sub-section is limited to states of facts in which a tenancy from year to year would at common law be implied from the payment of rent.

Burnham v. Carroll Musgrove Theatres Ltd. (1928) 41 C.L.R. 540, applied; Turner v. York Motors Pty. Ltd. (1951) 85 C.L.R. 55, per Dixon J., at p. 71, approved.

According to the practice appearing to be settled in New South Wales in the case of summary proceedings in ejectment under O. 21, r. 27 of the

92 CLR 606

Rules of the Supreme Court (N.S.W.) where nothing but a point of law is in question, the judge at chambers may either himself decide the point, or if he thinks it a point of such importance and difficulty that it should be dealt with by the Full Court, he may refer it. The High Court does not readily disturb a settled practice in the courts of a State unless it is necessarily con- trary to principle or some specific provision having statutory force and accepted the rule.

Decision of the Supreme Court of New South Wales (Full Court): Rowston V. Sydney County Council (1954) 55 S.R. (N.S.W.) 37; 71 W.N. 190, affirmed.

APPEAL from the Supreme Court of New South Wales.

The Sydney County Council was the owner of certain premises, situate at Numbers 77-79 Sussex Street, Sydney, which consisted of a large residential known as the Exchange Coffee Palace, and used as such by St. John Zealot Rowston. The residential was occupied by approximately ninety sub-tenants of whom, it was claimed, twelve were, on 24th October 1952, "protected persons within the meaning of the Landlord…

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: [1954] HCA 66
Decision Date: 22 November 1954

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning a dispute over a notice to quit premises known as the Exchange Coffee Palace. The appellant, Rowston, was the tenant, and the respondent, Sydney County Council, was the landlord. Rowston had occupied the premises under a lease that expired on 28th November 1946, for a term of one year, with rent payable weekly on Thursdays. After the lease expired, Rowston remained in possession and continued to pay rent. The Sydney County Council acquired the premises and subsequently sought possession, serving a notice to quit on Rowston. Rowston contended that the notice was invalid, arguing that his tenancy was a yearly one, or that the notice did not comply with the relevant statutory provisions.

The legal issues before the court included whether Section 22A of the Landlord and Tenant Act 1899-1948 (N.S.W.) applied to ejectment proceedings commenced in the Supreme Court after a magistrate's order had been superseded under Section 26 of that Act. The court also had to determine the applicability of Section 127(1) of the Conveyancing Act 1919-1943 (N.S.W.) to the tenancy, and whether the tenancy was from year to year, at will, or a weekly tenancy. A further issue was whether the periodical day for the commencement of the weekly tenancy was Monday, as contended by the Council, or Thursday, as implied by the original lease, and whether the notice to quit was valid in either case. Finally, the court considered whether the matter was appropriate for summary judgment under Order 21 of the Supreme Court Rules.

The High Court affirmed the decision of the Supreme Court of New South Wales. The Court held that Section 22A of the Landlord and Tenant Act 1899-1948 did not apply to ejectment actions in the Supreme Court commenced under Section 26 of that Act, as Section 22A was confined to proceedings before justices under Part IV of the Act. The Court also found that Section 127(1) of the Conveyancing Act 1919-1943 was not applicable because the facts did not support an implication of a tenancy from year to year at common law. The Court reasoned that the evidence, particularly the payment of rent from Monday to Monday after the change of landlord and the subsequent legal proceedings, established a weekly tenancy with Monday as the periodical day. Consequently, a notice to quit expiring on a Monday was valid. The Court also confirmed that the practice of the Supreme Court of New South Wales allowed for summary judgment in ejectment actions where only points of law were in question, and that in this case, the inference of a Monday-to-Monday weekly tenancy was the only reasonable one.

The appeal was dismissed, and the orders of the Supreme Court of New South Wales were affirmed.

Orders