Waterhouse v Waugh

Case [2003] NSWCA 139
CITATION: WATERHOUSE v WAUGH [2003] NSWCA 139
HEARING DATE(S): 12 and 13 March 2003
JUDGMENT DATE:
2 June 2003
JUDGMENT OF: Handley JA at 1; Giles JA at 57; Young CJ in Eq at 58
DECISION: Appeal allowed in part. Orders made
CATCHWORDS: LANDLORD & TENANT - assignment of accrued rights of lessor - concurrent lease - Conveyancing Act s 117 - contrary intention - LANDLORD & TENANT - covenant to deliver vacant possession at end of lease - substantial quantity of rubbish left on premises - breach of covenant
LEGISLATION CITED: Conveyancing Act
CASES CITED: Blake v Shaw (1860) Johnson 732
Blane v Francis [1917] 1 KB 252 CA
Cole v Kelly [1920] 2 KB 106 CA
Cook v Taylor [1942] Ch 349
Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 CA
Dalegrove Pty Limited v Isles Parking Station Pty Limited (1988) 12 NSWLR 546
Fitzgerald v Masters (1956) 95 CLR 420
Horn v Beard [1912] 3 KB 181
London & County Ltd v W Sportsman Ltd [1971] Ch 764 CA
Nicolene Ltd v Simmonds [1953] 1 QB 543 CA
Rye v Purcell [1926] 1 KB 446
Savage v Dent (1737) 2 Strange 1064; 93 ER 1034
Smilie Pty Ltd v Bruce (1998) 9 BPR 16,723
Warren v Keen [1954] 1 QB 15 CA
Yarmouth v France (1887) 19 QBD 647 CA

PARTIES :

 CHARLES HERCULES WATERHOUSE & ORS
v
WILLIAM MONTAGUE WAUGH & ANOR
FILE NUMBER(S): CA 41000/01
COUNSEL: Appellants: N A Cotman SC/S E Torrington
Respondents: G C Lindsay SC/F D Curtis
SOLICITORS:

Appellants: Waterhouse Solicitors
Respondents: Freehill Hollingdale & Page

Mr P Beazley for Cross-Respondent W S Waterhouse
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 3886/00; DC 4212/98
LOWER COURT
JUDICIAL OFFICER : 		Rolfe DCJ



                          41000/01
                          DC 3886/00 DC 4212/98
                          HANDLEY JA
                          GILES JA
                          YOUNG CJ in Eq

                          2 June 2003
CHARLES HERCULES WATERHOUSE & ORS v WILLIAM MONTAGUE WAUGH & ANOR

LANDLORD & TENANT – assignment of accrued rights of lessor - concurrent lease - Conveyancing Act s 117 - contrary intention

LANDLORD & TENANT – covenant to deliver vacant possession at end of lease – substantial quantity of rubbish left on premises – breach of covenant

The appellants were the beneficiaries in the estate of the late Charles Waterhouse who died in 1954. His surviving brothers, John and Bill (the brothers), were the executors and trustees of his estate. The estate and the brothers owned the Chatswood Charles Hotel as tenants in common in equal shares. In February 1988 the brothers leased the Hotel to the respondent on a weekly tenancy. Following the settlement in principle of all proceedings between the appellants and the brothers arising out of the Hagan v Waterhouse litigation ((1992) 34 NSWLR 308), and to implement that settlement in part, the brothers gave “possession” of the Hotel to the appellants and directed the respondent to pay future rent to them as from 28 September 1992. The beneficiaries entered into a short term lease of…

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Waterhouse v Waugh [2003] NSWCA 139
Case
[2003] NSWCA 139
Decision Date

CaseChat Overview and Summary

The parties to this matter were the lessors, Waterhouse and Waugh, and the lessee, whose assignee was the respondent. The dispute concerned the assignee's obligation to deliver vacant possession of the leased premises at the end of the lease term. The appeal was heard by Handley and Giles JJA, and Young CJ in Eq.

The primary legal issues before the court were whether the assignee had breached the covenant to deliver vacant possession by leaving a substantial quantity of rubbish on the premises, and whether the assignee was entitled to an assignment of the lessor's accrued rights under section 117 of the Conveyancing Act 1919 (NSW), notwithstanding a purported contrary intention.

The court held that the presence of a substantial quantity of rubbish constituted a breach of the covenant to deliver vacant possession, as it rendered the premises not truly vacant. Regarding the assignment of accrued rights, the court found that the wording of the lease did not clearly demonstrate a contrary intention sufficient to exclude the operation of section 117 of the Conveyancing Act.

The appeal was allowed in part, and orders were made accordingly.

Orders

Orders of the court

Appeal allowed in part. Orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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