Landlord and Tenant—Lease—Rent—Covenant to pay—Breach—Right to re-enter—Re-entry—Whether landlord entitled to damages for breach of covenant.
Decisions
1982, September 1. The following written judgments were delivered: - GIBBS C.J. This is an appeal from a decision of the Court of Appeal Division of the Supreme Court of New South Wales which, by a majority, dismissed an appeal from a judgment given by Carmichael J. in favour of the present respondent, the plaintiff in the action. The appellants were the guarantors of the due performance by Shevill Truck Sales &Service Pty. Ltd. ("the lessee") of all the terms and conditions of a lease dated 22 April 1976 under which the lessee held certain land at Milperra for a term of three years commencing on 7 March 1976. The land was transferred to the respondent on 13 July 1976, and thereafter the lessee attorned tenant to the respondent. Subsequently the guarantee was assigned to the respondent. The lease, so far as it is material, reserved a yearly rent of $35,655 which the lessee covenanted (by cl. 3) to pay in advance by equal monthly instalments of $2,971.25. Clause 9(a) of the lease provided as follows:
"The Lessor and the Lessee COVENANT AND AGREE:
(a) That if the rent hereby reserved or any part thereof shall be unpaid for the space of fourteen (14) days after any of the days on which the same ought to have been paid in accordance with the covenant for payment of rent herein contained (although no formal or legal demand shall have been made therefor) or if the Lessee commits or suffers to occur any breach or default in the due and punctual observance and performance of any of the covenants obligations and provisions of this lease or of any Rules made hereunder or if the Lessee be a company an order is made or a resolution is effectively passed for the winding up of the Lessee (except for the purpose of reconstruction or amalgamation with the written consent of the Lessor which consent shall not be unreasonably withheld) or if the Lessee goes into liquidation or makes an assignment for the benefit of or enters into an arrangement or composition with its creditors or stops payment of or is unable to pay its debts within the meaning of any relevant Companies Act or ordinance or if execution is levied against the Lessee and not discharged within thirty (30) days or if the Lessee (being an individual) becomes bankrupt or commits an act of bankruptcy or brings his estate within the operation of any law relating to bankrupts then and in any one or more or either of such events the Lessor at any time or times thereafter shall have the right to re-enter into and upon the demised premises or any…
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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AGLC
Shevill v Builders Licensing Board [1982] HCA 47
Case
[1982] HCA 47
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from a decision of the Supreme Court of New South Wales in *Shevill v Builders Licensing Board*. The dispute concerned the validity of a notice issued by the Builders Licensing Board under section 26 of the *Builders Licensing Act 1971* (NSW) which purported to disqualify the appellant, Mr. Shevill, from carrying on business as a builder. Mr. Shevill sought to have this notice declared void and invalid.
The central legal issue before the High Court was whether the Builders Licensing Board had the power to issue a notice under section 26 of the *Builders Licensing Act 1971* (NSW) disqualifying a builder from carrying on business without first affording that builder an opportunity to be heard. This involved an interpretation of the procedural fairness requirements inherent in administrative decision-making under the Act.
The Court, by majority, held that the notice issued by the Board was invalid. The majority reasoned that section 26 of the Act, which empowered the Board to issue a notice of disqualification, was a power that affected the rights and interests of the individual builder. Consequently, the principles of natural justice, specifically the right to a fair hearing, were engaged. The Board was therefore required to give Mr. Shevill notice of the grounds upon which it proposed to disqualify him and an opportunity to respond before making its decision. The Court found that the Board had failed to provide this procedural fairness.
The High Court allowed the appeal, declared the notice issued by the Builders Licensing Board void and of no effect, and ordered that the respondent pay the appellant's costs.