Dudgeon v Chie [1955] HCA 42

[14]

to enter judgment in an ejectment action brought by the applicant against Claude Simon Dudgeon. The applicant was life-tenant of the subject premises, a dairy-farm property containing two hundred acres, and in October 1954 she entered into a written agreement with the defendant and one Thomas Edwin Dudgeon jointly whereby the Dudgeons were to provide their own labour and to have the use of all implements on the farm. The applicant, described in the agreement as " owner ", was to supply dairy-cattle, and provisions were made for purchases and sales of cattle. The pigs, which at the time of the agreement were on the farm, were stated to be the property of the Dudgeons, and it was agreed that they should sell to the applicant a one-half interest in them, that the cost of raising them should be borne equally and that the proceeds of sale should be borne equally between the applicant and the Dudgeons. At the conclusion of the agreement the applicant was to purchase the Dudgeons' remaining one-half share in the pigs (cl. 4). Provision was made for the proper conduct of the dairying business by the Dudgeons and for the control and eradication of lantana on the property. The Dudgeons were required to maintain fences. The proceeds of sale of dairy-products were to be received by the applicant, who was to pay one-half of the moneys so received to the Dudgeons. By cl. 14 of the agreement it was provided that the Dudgeons attorned and became tenant of the applicant from the date of the agreement of the three dwellings and other buildings on the farm at a rental of one shilling per week, if demanded, and that such dwellings and buildings should not otherwise be deemed to be the subject of the agreement. Crops raised on the farm in excess of requirements were to be sold and the applicant was to pay one-half of the proceeds to the Dudgeons, and, by cl. 22, on the termination of the agreement the Dudgeons were to be entitled to a one-half interest in standing crops. The Dudgeons were not permitted to allow any person to enter the property other than those in their employ without the consent of the applicant (cl. 19), and by cl. 23 it was further provided that nothing in the agreement should prevent the applicant or her agents or guests from having free and full access to the dairy-farm and premises. Clause 21 provided that subject to the provisions of the Agricultural Holdings Act 1941, the agreement could be terminated at any time by either party giving the other party twenty-eight days' notice in writing of his or her intention to do so.

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of argument to the contrary by the respondent's counsel, to make some observations on the position of a defendant in an action at law of ejectment who sets up by way of defence that he is in possession under a share-farming agreement of a holding within the meaning of the Agricultural Holdings Act 1941. In Carter v. Smith (1), this Court held that no estate in possession was con- ferred upon the share-farmer but that the true position was that a licence was created which constituted no defence to an action of ejectment, the defendant's remedies, if he has any, being avail- able to him only in a separate action or suit. We see no reason to differ from the clear decision in this case. We were referred to the decision in Hardy v. Battaglene (2) which upheld in an action of ejectment a defence based on a written share-farming agree- ment to which the Agricultural Holdings Act 1941 applied. In that case the Full Court upheld a decision by a judge at mist prius that the agreement could only be terminated by giving the notice required by s. 24 of the Act. We have examined the judge's reasons at nis? prius (Herron J.) and these disclose that the point was not raised or dealt with. The report of the argument before the Full Court and the judgments likewise contain no reference to it. We do not think that this can be regarded as a decision to the contrary. There are, on the other hand, many judicial pronounce- ments on the subject which support the view taken in Carter v. Smith (1). Prior to the Act of 1941 two decisions of the High Court settle with certainty the position in law of a share-farmer vis-a-vis the owner of the farm. Hindmarsh v. Quinn (3) clearly decided that a share-farming agreement does not give the grantee a right to the exclusive possession of the land as against the owner of the legal estate and therefore does not afford an answer to an action of ejectment brought in the Supreme Court of New South Wales by the owner. Barton A.C.J. said, with respect to an action of ejectment : 'The action is possessory only ; that is, it is based on the right of actual possession in the admitted owner (cl. 1) which has passed to the respondent as his administratrix. The defence disputes this right of possession. It is plain that the respondent and the appellant cannot both have possession at the same time, not being joint tenants, or tenants in common, or co-parceners. The possession is prima facie in the respondent as administratrix of Quinn, and she is entitled as plaintiff to a verdict unless some

[26]

defence be established. It is contended that a defence is afforded by the agreement under seal. The appellant, therefore, must be taken to assert a right to exclude the respondent. To have this effect, the agreement must operate as a grant of some right which either carries per se a right to possession, or has such a right as a necessary incident to its exercise. It was contended for the respond- ent that the agreement operated as a grant, and that the thing granted was a profit d prendre. Assuming these two contentions, for present purposes, to be correct, prima facie a grant of a profit a prendre does not per se give a possession exclusive of the owner ' (1). Later the Acting Chief Justice dealt with the suggested right of exclusive possession in the grantee and, referring to a decision of this Court in Bellinger v. Hughes (2), observed that that decision, which related to a share-farming agreement, was authority for the proposition that such an agreement constituted a licence coupled with such an interest as rendered it irrevocable. But in the absence of evidence of tenancy Barton A.C.J. said of this position: "A mere irrevocable licence not conferring exclusive possession would not be a defence to an action of ejectment by the grantor of the licence ' (3). The other decision is that of Hill v. O'Brien (4) where the position of a share-farmer was closely examined and it was held that the right of a share-farmer to use and occupy the land for the purpose of the agreement amounts to a licence, the grant of which right gave him a remedy in personam based on the agreement but no such right of property as would entitle him to the enjoyment of tiparian rights. See also Perpetual Trustee Co. Ltd. v. Tindal (5) and Dever v. Lawson (6) which dealt expressly with the effect of s. 24 of the Agricultural Holdings Act 1941. The following dic- tum by three members of the High Court appears: "Section 24 does not apply in terms to the case of a share-farming agreement which is so framed as not to confer upon the share-farmer a right to exclusive possession of the land. Such an agreement confers only an irrevocable licence and does not create a tenancy : Bellinger vy. Hughes (2); see also Hindmarsh v. Quinn (7)' (8).

Dudgeon v Chie [1955] HCA 42 - HCA 1955 case summary — Zoe

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Court

Decision date

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Judgment (65 paragraphs)

Cited By (2)