Anderson v Bowles

Anderson v Bowles - [1951] HCA 61 - HCA 1951 case summary — Zoe

[5]

The facts alleged in the statement of claim as giving the plaintiff the right to relief which the demurrer denied may be stated as follows. In June 1946 the plaintiff let the premises to the defendant on a weekly tenancy. The demised premises formed a portion, known as No. 159 Stanley Street, Brisbane, of the Atlas Hotel Building, that portion comprising the basement, ground floor and first floor of the building and a yard appurtenant thereto. The defendant went into possession of the demised premises, and in January 1948 he sublet portion of them to the Factor Trading Company. In February 1948 the defendant, without the knowledge or approval of the plaintiff, sublet the first floor of the premises to one James. On 13th April 1948 the plaintiff gave the defendant a notice to quit in respect of the whole of the premises in accordance with the National Security (Landlord and Tenant) Regulations upon two grounds, namely the commission of waste and the subletting to James: reg. 58 (5) (c) and (n). The defendant did not notify the plaintiff of the names and addresses of his sub-lessees as he was required to do by reg. 73 (2) (a). On 25th May 1948 the plaintiff commenced proceedings against the defendant to recover possession of the premises, under the provisions of the Summary Ejectment Act of 1867 Q., and on 17th June 1948 an order was made that a warrant of possession be issued to put the plaintiff in possession of the premises and that the warrant be executed on 15th July 1948. On that day a constable of police, at the premises, produced the warrant to the defendant and the defendant and the Factor Trading Company vacated the basement and ground floor of the building and the yard, but James continued in occupation of the first floor. The warrant was not executed against James because James had obtained an ex parte injunction restraining the plaintiff from entering into possession until 21st July 1948. On 19th July 1948 James gave notice of discontinuance of the action in which the injunction had been granted, and made an application under reg. 64 (b) for rescission of the order made on 17th June so far as it related to the portion of the premises occupied by him. Before this application was dealt with, the defendant filed an application under reg. 64 (b) for rescission of the order. On 13th August 1948 James' application was heard and refused. The plaintiff then applied orally for an extension of the time for the execution of the warrant and on 23rd August 1948 made the like application in writing. But on 27th August 1948 the defendant's application to rescind the order and warrant for possession was granted, a direction was given that notices be given to the Factor Trading Company and James under reg. 73 (2) and the proceedings were adjourned to 9th September 1948. On 1st September 1948 the National Security (Landlord and Tenant) Regulations ceased to have effect in Queensland pursuant to an order under reg. 7aa, subject of course to sub-reg. (3) of that regulation: Commonwealth Gazette No. 123 of 1948. On the same day The Landlord and Tenant Act of 1948 (No. 31 of 1948) Q. came into force. The plaintiff appealed from the order rescinding the order and warrant for possession and on 22nd November 1948 the Supreme Court allowed the appeal and remitted the matter to the Court of Petty Sessions to be dealt with: Bowles v. Anderson [1] . The defendant and James then gave notice of appeal to this Court but not until 4th March 1949. The appeal was abandoned, however, and on 15th June 1949 it was formally dismissed by this Court. On 4th July 1949 the application made by the plaintiff on 23rd August 1948, i.e., for the extension of the warrant, was heard by the magistrate, and an order was made that the warrant be executed within fourteen clear days from 4th July 1949. It was in fact executed on 15th July 1949, and the plaintiff then entered into possession of the whole of the premises. The plaintiff incurred legal expenses in connection with James' application to rescind the order, the defendant's application for the same purpose, the appeal to the Full Court, and the plaintiff's own application for extension of the time for execution of the warrant. The plaintiff also lost mesne profits or rental for the period of one year, i.e., from 15th July 1948 to 15th July 1949.

[7]

The decision of the Full Court that the plaintiff had a cause of action for trespass proceeded upon the view which their Honours took of the operation and effect of certain provisions contained in the National Security (Landlord and Tenant) Regulations which were treated as governing the case. If the Regulations and not the State Act govern the rights of the parties in respect of the period after 1st September 1948 it must be by virtue of sub-reg. (3) of reg. 7aa. Sub-regulations (1) and (2) provide in effect that when the Minister makes an order declaring that the recovery of possession shall cease to be controlled by the regulations in a State, then, subject to certain exceptions, the regulations shall from the date specified in the order cease to have effect in that State. Sub-regulation (3) then provides that the operation of the preceding sub-regulation shall not affect any right, privilege, obligation or liability acquired accrued or incurred under the regulations before the date specified in the order or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability and any such investigation, legal proceeding or remedy may be instituted continued or enforced as if the preceding sub-regulation had not been made. The rights referred to in this provision must be specific rights acquired under particular provisions. The provision cannot relate to the general protection enjoyed by all lessees of prescribed premises enabling them to remain in possession until a notice to quit is given conforming with the regulations and a proceeding is taken before a magistrate resulting in an order for possession in favour of the lessor and the issue of a warrant. Otherwise it would only be new tenancies that would fall under the operation of the State Acts. Accordingly if there had been no appeal from the order of the magistrate of 27th August 1948 the regulations would have had no relevance to the period after 1st September 1948. It may be, however, that the right of appeal from that order given by reg. 65a (2) was preserved by reg. 7aa (3). But s. 6 (6) of The Landlord and Tenant Act of 1948 Q. is expressed in language apt to authorize the continuance of the appeal as a proceeding under that Act and, since the Federal reg. 7aa and the provisions of State law of the description of s. 6 (6) were obviously framed so as to be complementary, it may be open to doubt whether the Federal sub-regulation should not be construed as meaning that the cessation of the regulation is not to prejudice any right &c. in case State law did not provide for its continuance. But the matter is of small practical importance because the State Act contains in s. 53 (2) the same provisions as reg. 65a (2) concerning appeals and in nearly all other respects closely follows the Federal regulations.

[10]

The date of expiration of the notice to quit is not alleged, but the tenancy must have terminated at some date prior to 25th May 1948, when the plaintiff commenced her proceedings to recover possession. After the termination of the tenancy, the position apart from the regulations would have been that the defendant, while he remained in possession without either the assent or the dissent of the plaintiff, was a tenant at sufferance: Foa on Landlord and Tenant (7th ed.), p. 2. The plaintiff could recover from him under a claim for use and occupation, in respect of the period during which he occupied the premises as tenant at sufferance: Bayley v. Bradley [1] . The plaintiff could elect to treat him as a trespasser and sue for possession, and upon recovering possession she could also recover mesne profits: Cole on Ejectment, pp. 635, 636. Further, there is implied in the relation of landlord and tenant an obligation on the part of the tenant to deliver possession of the demised premises to his landlord at the termination of the tenancy should the landlord require it and for breach of that obligation he is liable in damages the measure of which is little if at all different from mesne profits: Henderson v. Squire [2] . In the present case damages are not claimed from the expiration of the notice to quit until the plaintiff was put into possession of every part of the demised premises on 15th July 1949. They are claimed only for one year, namely, from 15th July 1948 to that date. The allegation is that from 15th July 1948 no payment in respect of the rental of the premises was made to the plaintiff. That was the date fixed for the execution of the warrant. It was then that in obedience to the warrant the defendant and the Factor Trading Company gave up so much of the demised premises as they occupied. James was left in occupation of the remainder of the premises, that is to say, the first floor, because he was protected by the interim injunction. Having chosen in this way to treat any further denial to her of possession as wrongful the plaintiff, apart from the regulations, could not claim rent in respect of the premises thus partially occupied, even if the rent were apportionable in respect of so much of the demised premises as were withheld from her. As the defendant is not alleged to have authorized James to remain in possession of the first floor or to have received any rents or profits in respect of his doing so, the defendant would seem not to be liable for mesne profits in respect of James' denial of possession to the plaintiff of the first floor: cf. Doe v. Harlow [1] , and Powell v. Aiken [2] . But that would be of no importance in as much as the defendant would be liable in damages for his failure to perform his obligation ex contractu to deliver up that part of the demised premises. Those damages might or might not, according to circumstances as they might appear to the court or jury assessing them, be of an amount equal to the rental value for the period of the demised premises as a whole.

[20]

In the present case the plaintiff seeks to apply the foregoing rule to the costs of the proceedings under the Landlord and Tenant Regulations which ended in the ejectment of James. Regulation 75, corresponding with s. 62 of the Act, provides, however, that no costs shall be allowed in any proceedings in relation to which the Part applies not being proceedings in respect of an offence. This is a legislative declaration that the parties to proceedings for the recovery of possession or proceedings arising thereout shall not be liable to one another for the costs of those proceedings. In the face of this legislative declaration can costs be properly included in the damages or mesne profits? It is a general rule that where it is sought to include costs incurred in other proceedings in the damages arising upon a cause of action, costs shall not be included, if as a matter of judicial determination or by a positive rule of law they are treated as costs which should be borne by the party suing. Accordingly it is not possible to recover as part of such damages the difference between party and party costs awarded to the plaintiff in the original litigation and the costs as between solicitor and client which he has incurred: Barnett v. Eccles Corporation [1] . Further, if costs are expressly withheld by the court in the original proceeding none can be recovered in the action for damages brought by the plaintiff from whom they were so withheld: Loton v. Devereux [2] , where Lord Tenterden C.J. said: "In such a case the Court have jurisdiction to say definitely whether there shall or shall not be costs". In Malden v. Fyson [3] Lord Denman C.J. said: "And this principle was admitted, in general, to apply; so that, if any costs were awarded, nothing beyond the sum taxed according to the rules of the Court could be recovered as damages; or, if costs were expressly withheld by an adjudication in the particular case, none would be recoverable by suit in any other Courts." See, further, Pritchet v. Boevey [4] .

[24]

The appellant was a weekly tenant of the respondent upon the terms of an oral contract of tenancy. They were lessee and lessor respectively within the meaning of the National Security (Landlord and Tenant) Regulations and the demised premises were within the purview of these regulations. The respondent gave notice to the appellant to quit the premises. The notice was given and proceedings for the recovery of the possession were instituted and determined, in accordance with the regulations. In consequence of these proceedings the appellant was evicted from the demised premises on 15th July 1948. A sub-tenant to whom the appellant sublet part of the premises held over. The respondent did not consent to or approve of this sub-lease. The respondent did not succeed in obtaining entry into the premises until 15th July 1949. The respondent brought an action to recover damages from the appellant for loss occasioned by the holding over of the sub-tenant. In the action the respondent claims damages for "loss of mesne profits and/or rental" in respect of the period during which the sub-tenant held over. The only questions which were argued were whether this claim and a claim for costs are bad in substance. Mesne profits are compensation for a wrong to possession. The action for mesne profits is a species of the action for trespass and it lies to recover damages for loss suffered in consequence of being kept out of possession. The respondent's right to bring the action arose when, at last, she re-entered. By a fiction of law she is deemed to have been in possession from the time she was entitled to possession and her right to mesne profits accrued as from that time. The appellant is not liable to be sued for mesne profits unless he is responsible for her being kept out of possession. The sub-tenant was in possession during the whole of the period for which mesne profits are claimed. It is not alleged that the sub-tenant stood in a relation to the appellant or the appellant did anything which would make the appellant liable for the wrong done by the sub-tenant to the respondent's possession if the sub-tenant is guilty of such a wrong. The count for mesne profits does not lie.

[25]

The next question is whether an action for the rent of the premises lies against the appellant for the period during which the sub-tenant held over after the respondent was entitled to enter. In Harding v. Crethorn [1] Lord Kenyon said: "When a lease is expired, the tenant's responsibility is not at an end; for if the premises are in possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable; for the lessor is entitled to receive the absolute possession at the end of the term." Accordingly, where a tenant has vacated the premises after the determination of the tenancy, but his sub-tenant holds over and the landlord does not accept his occupation, the tenant is liable for the rent to the landlord in an action for use and occupation, and for the costs incurred by him in ejecting the sub-tenant: Ibbs v. Richardson [1] ; Henderson v. Squires [2] . It is necessary to superimpose the regulations upon the contract of tenancy in order to decide whether this liability, which arises from the contract, is extinguished or affected. Acton J. said in Reynolds v. Bannerman [3] that the above-mentioned cases establish what the liability of the tenant is when a statute has not taken away his right to get rid of the sub-tenant; and the principle does not apply when the sub-tenant remains in possession by operation of a statutory enactment and independently of any right derived from the tenant. The liability of the appellant therefore depends upon the question whether the regulations prevented the appellant from getting possession of the premises, upon the determination of the tenancy, for his own landlord. The appellant sublet the premises without the consent of the respondent. One of the grounds upon which the regulations say that a lessor may give a notice to quit to the lessee is that the lessee has sublet the premises or some part thereof by a sub-lease which has not been consented to or approved by the lessor: reg. 58 (5) (n). The notice to quit operates to determine the tenancy of the premises at expiration of the period specified in it: reg. 62. An order may then be made in accordance with the regulations for the recovery of the possession of the premises. In this event, the regulations give no right to the sub-tenant to remain in possession. Regulation 73, on the other hand, specially deals with the case where the lessor has consented to or approved of a sub-lease, and the lessee ceases to be in possession of the premises following upon the making of an order for the recovery of possession or the surrender of his leave by the lessee. This regulation provides, in effect, that in that case the lessee shall drop out and the sub-lessee take his place. There is nothing in the regulations which would have prevented the appellant, if so minded, to take steps to terminate the occupation of his sub-tenant. A count for use and occupation lies and upon that count the respondent is entitled to recover rent from the appellant.

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Judgment (28 paragraphs)

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Cited By (12)