Bentley v Benbow

The fate of this appeal, which is brought by special leave, depends upon the true meaning of s. 62 (5) (h) of the Landlord and Tenant (Amendment) Act 1948-1954 N.S.W.. This paragraph contains one of the grounds prescribed by sub-s. (5) upon which the lessor of prescribed premises may give a notice to quit such premises under the Act. It is in the following terms: - "(h) that the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery or other like premises and are reasonably required for the personal occupation of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion)".

The material facts are brief and not very precise. By an indenture executed on 19th November 1856 the subject property now known as 186 Palmer Street, Sydney, which was then vacant land, was conveyed by its then owners to trustees on behalf of the Presbyterian Church their heirs and assigns habendum "To have and To hold the said land and hereditaments Unto and To the Use of the said Trustees their heirs and assigns Upon Trust for the erection thereon of a Church under the superintendence of the Synod of Australia in connexion with the established Church of Scotland in conformity with the provisions of an Act of the Governor and Legislative Council of New South Wales made and passed in the eighth year of the reign of His late Majesty King William the Fourth intituled "An Act to regulate the temporal affairs of the Presbyterian Churches and Chapels connected with the Church of Scotland in the Colony of New South Wales" and of a certain other Act of the Governor and Legislative Council made and passed in the seventh year of the reign of His said late Majesty King William the Fourth and numbered three so far as the same may apply to the trusts of this Indenture And upon trust for the erection thereon of a Schoolhouse under the superintendence of the said Synod of Australia and of other buildings if required in connexion with the said Church and Schoolhouse and for no other purpose whatsoever."

The land adjoins the Presbyterian Church in Woolloomooloo. Some years after the trustees acquired the land, apparently about 1886, a building was erected upon it as a manse for the minister of that church. Many years later, apparently about 1936, the church no longer desired to use the building for this purpose, and the property was let to a tenant who commenced to carry on a residential business. The respondent Mrs. Benbow became the tenant of the property about 1947 and has since carried on this business. The lessor of the property is now The Presbyterian Church (N.S.W.) Property Trust on behalf of the Presbyterian Church and the appellant John Bentley is a director of Killen and Thomas Pty. Ltd. a company which manages the property as agent for the Trusts. On 17th July 1956 he served a notice to quit on Mrs. Benbow, the prescribed ground being that set out in par. (h). Mrs. Benbow failed to quit the property on the termination of the notice and proceedings were then taken by Bentley at the Central Court of Petty Sessions, Liverpool Street, Sydney on 8th November 1956 for recovery of the premises. A considerable amount of evidence was tendered before the magistrate, the respondent E. J. Gibson, Esq., who held that this ground had been established and decided the question of hardship in favour of the lessor. Accordingly he adjudged that the lessor was entitled to possession.

Mrs. Benbow then obtained a rule nisi for a writ of prohibition in the Supreme Court of New South Wales on the ground that there was no evidence upon which the learned magistrate could properly find that the said premises had been acquired within the meaning of s. 62 (5) (h) of the Landlord and Tenant (Amendment) Act 1948-1954 by The Presbyterian Church (New South Wales) Property Trust for use as a parsonage, vicarage, presbytery or other like premises. Upon the hearing of the application to make the rule nisi absolute the Full Supreme Court upheld this ground and made the rule absolute. In a joint judgment their Honours said "At the time of "acquisition" the trustees had vacant possession of the premises and the lease which the Trust now seeks to determine is one which it itself granted and not one to which its title was subject when it acquired the premises. The question is whether, in these circumstances, par. (h) can have any application. The point is one on which minds may differ but on the whole we are of opinion that the paragraph has no application. We think that the paragraph contemplates an acquisition of premises subject to a then existing lease which, unless terminated, prevents the premises acquired from being put to the use for which they were acquired" [1] .

1. (1957) S.R. (N.S.W.) 547, at p. 548; 74 W.N. 292, at p. 293.

In all respect to their Honours, this construction appears to place an implied restriction upon the meaning of par. (h) which its language does not warrant. There is nothing in this language which requires that the premises should have been at the date of acquisition subject to a lease. The language is quite apt to apply to the case where the premises have been acquired for use as a parsonage etc., but have subsequently been let and at a later date are reasonably required for the personal occupation of a minister of religion. The paragraph has two limbs (1) that the premises are used as a parsonage etc., and are reasonably required etc. This limb would apply to cases where at the date of the notice to quit the existing tenant is using the premises as a parsonage etc., but the lessor reasonably requires them for the personal occupation of some particular minister of religion. (2) That the premises have been acquired for use as a parsonage etc., and are at the date of the notice to quit reasonably required for the personal occupation of a minister of religion. It is this second limb which is of importance in the present case. The initial words of this limb require and require only that the premises should have been originally acquired for use as a parsonage etc. These are uses authorised by the trusts of the indenture. The land was, when acquired, vacant land but it was acquired in order to be built upon for certain purposes and the manse, which fulfilled one of those purposes, was erected about 1886. It was a building required in connexion with the church and falls within the description in par. (h) of a "parsonage, vicarage, presbytery or other like premises". The Act does not apply to vacant land which is let for the purposes of occupation as vacant land (Turner v. York Motors Pty. Ltd. [1] ); but it does apply to land which is let subject to a covenant to erect a building on it as soon as the building has been erected: Belmore Property Co. (Pty.) Ltd. v. Allen [1] .

1. (1951) 85 C.L.R. 55, at pp. 75, 82-84. 2. (1950) 80 C.L.R. 191.

The land at 186 Palmer Street, having been built upon, was at the date of the notice to quit prescribed premises within the meaning of the Act and the property became subject to the Act when it was let to a tenant in 1936. But the fact that the property was at the date of the indenture vacant land is immaterial. It was acquired so that it could be built upon for church purposes. When the manse was built the acquisition of the land for use as a parsonage etc., was complete. At the date of the notice to quit, therefore, the property was premises which "have been acquired for use as a parsonage" etc. There are no express words in the second limb of par. (h) which require that, to come within it, the property must at the date of acquisition have been subject to a lease which the landlord desires to terminate at the date of the notice to quit. At the date of the notice to quit there must of course be a subsisting lease otherwise the tenancy would not be subject to the Act. But the words "have been acquired" relate not to the date of the notice to quit but to the date of acquisition. It is sufficient if at the date of acquisition the property was acquired for use as a parsonage etc. The use to which the premises may have been put between the date of acquisition and the date of the notice to quit is immaterial for the purposes of par. (h), although it may be very material for other purposes of the Act and particularly with respect to the questions that arise under s. 70 of the Act.

In the course of their judgment their Honours said: "Every other paragraph in s. 62 (5) is directed to a state of affairs in which, during the currency of the lease which it is sought to terminate, circumstances have arisen which the legislature regards as providing a reason for terminating the lease. We are of opinion that the relevant part of par. (h) is similarly designed to operate and to apply where there has been an acquisition of premises subject to a lease and not where there has been an acquisition followed by the grant of a lease" [1] . But again with respect to their Honours, while one can agree that all these paragraphs refer to circumstances which have arisen during the currency of the subsisting lease which the legislature regards as a reason for terminating it, the circumstances in question in par. (h) are that, in the case of the second limb, the premises have been acquired for use as a presbytery etc., and are at the date of the notice to quit reasonably required for the personal occupation of a minister of religion. The paragraph does not say that one of the circumstances must be that the premises have been acquired subject to the lease which at the date of the notice to quit the lessor desires to terminate or subject to any lease. The initial requisite is that the premises must have been originally acquired for use as a parsonage etc. If that requisite is fulfilled the second requisite is that they should at the date of the notice to quit be reasonably required for the personal occupation of a minister of religion.

1. (1957) S.R. (N.S.W.), at p. 548; 74 W.N. 292, at p. 293.