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Thompson v Easterbrook

Thompson v Easterbrook

Case [1951] HCA 32 14 June 1951

Appeal

Jurisdiction

Statutory Construction

Property Law

Statutory Interpretation

Civil Procedure

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83 CLR 467

THOMPSON AND ANOTHER EASTERBROOK

RESPONDENT. DEFENDANT, Landlord and Tenant- Dwelling-house "-Shop and dwelling-User-Purposes-

Residence-BusinessTermination of tenancy-Notice to quit-Premises required by lessors for occupation in trade-Appeal from magistrate-Case stated-Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) (No. 25 of 1948-No. 21 of 1949), ss. 8 (1), 62 (5) (g) (i), (ii), 70 (2), 74 (1), (2), 84- Justices Act 1902-1947 (N.S.W.) (No. 27 of 1902-No. 3 of 1947), S. 101.

Section 8 (1) of the Landlord and Tenant (Amendment) Act, 1948-1949 (N.S.W.) provides (inter alia) that "

unless the contrary intention 6 dwelling-house means any prescribed premises (including shared accommodation) leased for the purposes of residence

Held that in respect of leased premises the purpose or combination of purposes to which the parties must be held to have contemplated that the premises would be put by the tenant, must be ascertained by considering the provisions of the contract as it stands at the date when the notice to quit is given, and any facts which at that date affect their mutual rights and duties in relation to the user of the premises; and, if the inquiry is not thereby answered, then by considering the nature of the premises and all the circumstances existing at the date of the original lease. If the conclusion be that residence was either the sole purpose or one of several purposes which the parties should be held to have contemplated the premises must be held to be ' leased for the purposes of residence" " within the meaning of the Act; but a conclusion that residence was a purpose of the letting is not open where the parties are considered to have had in view no residence except as part of the enjoyment of the entire premises for non-residential purposes.

83 CLR 468

Section 74 (2) of the Landlord and Tenant (Amendment) Act, 1948-1949 which provides that there shall be an appeal, as to questions of law only, to the Supreme Court creates a new and substantive right of appeal and as no procedure for the exercise of that right is prescribed, the procedure by way of case stated under S. 101 of the Justices Act 1902-1947 (N.S.W.) is

Decision of the Supreme Court of New South Wales (Herron J.): Easter brook v. Thompson, (1950) 67 W.N. (N.S.W.) 158, varied.

APPEAL from the Supreme Court of New South Wales.

In an information laid by Frederick Thompson on his own behalf, and on behalf of John Marshall, his partner, it was alleged, inter alia, that the defendant John Robert Easterbrook held from them by virtue of a tenancy from week to week the land and premises, being a dwelling house, shop and shed, known as Num- ber 119 Victoria Road, Drummoyne; that that tenancy was determined by notice to quit on or about 23rd October 1949 that at the time of the information the land and premises were actually occupied by the defendant; and that the defendant had neglected to quit and deliver up…

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.

Continue reading Thompson v Easterbrook

Details

AGLC: Thompson v Easterbrook [1951] HCA 32
Case: [1951] HCA 32
Decision Date: 14 June 1951

CaseChat Overview and Summary

The appellants, lessors, sought possession of premises comprising a shop, dwelling, and shed from the respondent, the lessee. The lessors relied on grounds that the premises were reasonably required for their occupation in trade, or for reconstruction/demolition. A magistrate granted possession, but the lessee appealed by way of case stated to the Supreme Court of New South Wales. Herron J. found the magistrate had misdirected himself on questions of law and remitted the case. The lessors then appealed to the High Court of Australia.

The central legal issue was whether the premises, which had been used as a shop and dwelling, constituted a "dwelling-house" as defined by the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.). This determination was critical because if the premises were a dwelling-house, specific provisions regarding notice to quit and the provision of alternative accommodation would apply, potentially invalidating the lessors' claim for possession. A secondary issue concerned the competency of an appeal by way of case stated under the Justices Act 1902-1947 (N.S.W.) for appeals arising under the Landlord and Tenant (Amendment) Act.

The High Court held that an appeal by way of case stated was a competent method for appealing questions of law under the Landlord and Tenant (Amendment) Act, as section 74(2) created a new right of appeal for which no specific procedure was prescribed, making the existing case stated procedure available. Regarding the definition of "dwelling-house," the Court clarified that the purpose of the letting must be ascertained by considering the contract at the date of the notice to quit, and if necessary, by reference to the nature of the premises and circumstances at the original lease. The Court found that the magistrate had erred in focusing too heavily on the original lease terms and the dominant user at the commencement of the tenancy, rather than the purposes contemplated by the parties at the time the notice to quit was given. The Court concluded that the question of whether the premises were "leased for the purposes of residence" was a matter for the magistrate to determine based on the correct legal principles, and therefore, the Supreme Court's decision to remit the case was upheld.

Orders