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[1957] HCA 93
High Court of Australia
1957-07-01
Taylor JJ, Richardson J, Williams J
Original judgment source is linked above.
High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Taylor JJ. Morris v English, Scottish & Australian Bank Ltd [1957] HCA 93
ORDER Appeal allowed with costs including the costs of the objection to competency. Discharge the order of Richardson J. In lieu thereof order that the question in the stated case of the magistrate be answered that the determination dismissing the information is not erroneous in point of law and the appeal from the Court of Petty Sessions at Paddington be dismissed.
Dec. 19 Dixon C.J., McTiernan, Webb and Taylor JJ.
In this case Richardson J. rejected the second ground upon which the magistrate dismissed the information. In terms that ground is that although the prescribed ground contained in s. 62 (5) (m) was established, an order cannot be made against the lessee by reason of the decision of the Privy Council in the matter of McKenna v. Porter Motors Ltd. [8] .
Richardson J. rejected the ground for the reason that he considered the terms of the New Zealand statute on which their Lordships pronounced were distinguishable from the legislation of New South Wales and the respondent's argument rested in great measure upon the same view. But unfortunately for the argument, their Lordships so interpreted the New Zealand statute upon the assumption that the statute closely resembled the National Security (Landlord and Tenant) Regulations, which are the parent of the New South Wales Act, an offspring carrying its paternity on its face. Their Lordships appear to have been influenced by a provisional dictum of Williams J. as to the meaning of those regulations in Burling v. Chas. Steele & Co. Pty. Ltd. [1] , which the Board adopted. Whether their Lordships carried the meaning of the dictum of Williams J. further than he intended is a matter upon which respectful doubt may be allowable. Compare his Honour's statement in refusing special leave in Felser v. Walker [2] . But their Lordship's authority is supreme on such a matter and it remains only for this Court to comply with their pronouncement. The appeal should therefore be allowed.
In my opinion the interpretation placed by Lord Somervell of Harrow, delivering the judgment of the Privy Council in McKenna v. Porter Motors Ltd. [3] upon grounds (h) and (m) contained in sub-s. (1) of s. 24 of the Tenancy Act 1948 N.Z. must be applied to grounds (g) (ii) and (m) contained in sub-s. (5) of s. 62 of the Landlord and Tenant Act 1948-1954 N.S.W.. In the course of the judgment his Lordship referred to certain remarks of mine in Burling v. Chas. Steele & Co. Pty. Ltd. [1] made in reference to grounds (g) (ii) and (l) contained in sub-reg. (5) of reg. 58 of the National Security (Landlord and Tenant) Regulations. At the time these remarks were made the National Security (War Service Moratorium) Regulations were in force and it was provided by reg. 30 (2) of those regulations that an application should not be made for an order for the recovery of possession of any premises from a protected person on any ground specified in pars. (f), (k) or (l) of sub-reg. (5) of reg. 58 of the National Security (Landlord and Tenant) Regulations. It was provided by reg. 30 (5) that notwithstanding the provisions of the National Security (Landlord and Tenant) Regulations, an order should not be made for the recovery of possession of any premises from a protected person on the grounds specified in pars. (g) or (i) of sub-reg. (5) of reg. 58 of the National Security (Landlord and Tenant) Regulations unless the court making the order was satisfied - (a) that reasonably suitable alternative accommodation was, or had been since the date upon which notice to quit was given, available for the occupation of the protected person or (b) that the protected person had sub-let the premises in respect of which the order was sought and was permanently residing elsewhere. When, therefore, the lessee was a protected person, it was impossible for a lessor who required the demised premises for reconstruction or demolition to obtain an order for possession but it was possible for him to do so if he required them for occupation by himself &c. Accordingly a lessor who could prove that he reasonably required premises in order to occupy them by himself etc. and as incidental thereto to reconstruct or demolish the existing building, whether it was replaced or not, was in a more favourable position when the lessee was a protected person than a lessor who could not prove that he reasonably required the premises for occupation by himself etc. By a strange inversion, under the Landlord and Tenant (Amendment) Act N.S.W., a lessor who seeks to recover premises from a lessee who is a protected person in order to reconstruct or demolish the premises is in a more favourable position if he proceeds under ground (m) than if he proceeds under ground (g) (ii) because s. 100 of that Act provides that "except in the case of an order made upon any one or more of the grounds set out in pars. (a), (b), (c), (d), (e), (f), (k), (m), (n), (o), (p), (q) or (r) of sub-s. (5) of s. 62 of this Act, an order for the recovery of possession of any prescribed premises shall not be made against a protected person unless the court, in addition to being satisfied upon any other ground upon which the court is required to be satisfied, is further satisfied - (a) that reasonably suitable alternative accommodation is, or has been since the date upon which the notice to quit was given, available for the occupation of the protected person or (b) that the protected person (being the lessee) has sub-let the prescribed premises in respect of which the making of an order is sought and is permanently residing elsewhere". A lessor therefore who seeks to recover possession of premises from a protected person for occupation by himself &c. under ground (g) (ii) is still in the same position as he was under the National Security (War Service Moratorium) Regulations, whereas a lessor who seeks to recover possession of premises from such a person in order to reconstruct or demolish them can now take proceedings to do so and the court can make an order after taking into consideration, in accordance with s. 70 (1) in addition to all other relevant matters, "(a) any hardship which would be caused to the lessee or any other person by the making of the order; (b) any hardship which would be caused to the lessor or any other person by the refusal of the court making the order; and (c) whether reasonably suitable alternative accommodation in lieu of the prescribed premises is, or has been since the date upon which notice to quit was given, available for the occupation of the person occupying the prescribed premises or for the occupation of the lessor or other person by whom the prescribed premises would be occupied if the order were made". As stated in the remarks that appear in [1] , I did not intend to suggest in Burling's Case [2] that the two grounds in question were mutually exclusive but that if the lessor could prove that he reasonably required the premises for occupation by himself &c., although he also intended to reconstruct or demolish them, he could proceed under ground (g) (ii), but that if all that he wished to prove was that he reasonably required them for reconstruction or demolition so as to leave himself free to put the premises to some use other than occupation by himself &c., ground (l) was the appropriate ground. I did not intend to suggest that a landlord who wanted to reconstruct or demolish the premises for occupation by himself &c. could not rely on ground (l) as well as on ground (g) (ii), but that if he relied on ground (l) he might be met by a defence not open to the lessee under ground (g) (ii). Where, therefore, the lessor could prove that he reasonably required the premises for reconstruction or demolition for occupation by himself &c., (g) (ii) was the correct ground. The definition of a protected person in the National Security (War Service Moratorium) Regulations was so wide that a lessor might often have found that ground (l) was not available.
Their Lordships however have given a more limited meaning than this to ground (m) in the New Zealand Act corresponding to ground (l) in the National Security (Landlord and Tenant) Regulations (and now ground (m) in the Landlord and Tenant (Amendment) Act) and this limitation is of course binding upon us. In my opinion the appeal should be allowed.
Morris
English, Scottish & Australian Bank Ltd