Mulcahy v Hoyne [1925] HCA 17

Mulcahy v Hoyne [1925] HCA 17 - HCA 1925 case summary — Zoe

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determined by re-entry, of a proportionate part of the rent for the then current lunar month up to the date of such re-entry. The relevant covenants and provisions contained in the lease are as follows : - (1) Covenants by the lessee: (a) that the lessee and his permitted transferees should reside on the said premises and person- ally manage, carry on and conduct the trade or business of a licensed victualler in a quiet and orderly manner and comply with and conform to all the duties and liabilities of a licensed person or holder of a victualler's licence as required by and should not be guilty of or permit any breach or breaches of the provisions of the Licensing Acts or of any other Acts affecting or relating to licensed hotels or the holders of victuallers' licenses or any statutory modification, re-enactment or amendment thereof or any part thereof for the time being during the term by the said lease granted in force in the State of Victoria; and (b) that the lessee and his permitted transferees would not do, commit, omit or suffer to be done, committed or omitted any act, matter or thing whatsoever whereby or by means whereof any victualler's licence or any renewal thereof for the time being in force in respect of the said hotel should be allowed to expire or become void or should or might be forfeited or rendered liable to be forfeited, suspended, taken away or refused or whereby the lessee or licensee should be disqualified from receiving or holding or having a victualler's licence or any renewal thereof granted in respect of the said hotel. (2) A proviso for re-entry on breach or default in observance of the above covenants (although the lessor might not have taken advantage of some previous breach or default of a like nature) by giving twenty-four hours' notice in writing to the lessee determining the lease. (3) A covenant by the lessor for quiet enjoyment in the usual form. (4) A proviso in the words following: ' Provided always and the lessee doth hereby expressly covenant with the lessor that each and every breach of any covenant or condition on the lessee's part herein contained shall be deemed a separate and con- tinuing breach from day to day and that if the lessee shall be guilty of any breach of the provisions herein contained or implied or other acts which would render this lease liable to be forfeited or entitle the lessor to cancel the same under the provisions herein contained

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understand she wanted me to observe all the conditions of # Licensing Act." Later on he says: "She said not to hay convictions for 'trading' as that goes against the house." appellant gives a flat denial to any implied permission to break th law. She says: "I impressed on him that he was not to f after hours." I refer to her statement, not for the purpose | accepting her testimony in opposition to that of the respondent, bu for the purpose of showing that the respondent's evidence is not strengthened by admission or silence. It is a very serious matter to accept mental impressions such as "I did not understand she wanted me to observe all the conditions of the Licensing dct," when the actual formal instrument is most explicit on the point. And, so far as mere knowledge and standing by are concerned as element in the conclusion of fact, it must not be overlooked that the leas itself provides that re-entry for a breach may be made " although the lessor may not have taken advantage of some previous br or default of a like nature." This provision adds to the ordinary difficulty of establishing waiver of a forfeiture even when it is al breach. That is exemplified in Ward v. Day (1), a case in the Exchequer Chamber relating to waiver of forfeiture after breach. But, while adverting to these considerations to prevent misconcepti in future cases, I do not decide against the conclusion of fact. It is possible that the evidence as a whole, on full examination and havi regard to the manner in which the witnesses gave their testimony, might be held to justify the conclusion that the acts and intention of the appellant and of the respondent amounted to a mutual waiver, that is, abandonment of the covenant and condition. Therefore proceed on the assumption that it is correct. That conclusion is in these words (2) : "' There was an actual waiver extending generally to any such breach of the covenants as is now relied on, and to that extent an intention to waive the benefit of the covenants appears, at all events until notice to the contrary should be given. Accepting that finding, a very serious question arises which wi debated on the argument of this appeal. On the assumption tha before the appellant could have the benefit of the covenant she must

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tenancy, a very significant intimation that the appellant was no longer permitting the respondent to carry on illicit trading? She was forbidding him to carry on trading at all after 19th February, and for the expressed reason (taken now to be inaccurate) that he had been refused a renewal of his licence, the cause of the alleged refusal being equally known to both parties, namely, illicit trading. If it were necessary, I should say that there was quite sufficient notice to the respondent that any previous consent to his trading in contravention of the Licensing Act, and thereby imperilling the status of the hotel itself, was withdrawn. Nevertheless, on his own admission and by the finding of the learned primary Judge, his illicit trading continued. The best he can say is: "It did not alter much." Although that may be confined for this case to 20th February, so as to escape both the acceptance of prior rent and the date of intended determination in the first notice, it is technically enough. It would be certainly hard on the respondent that, after - on the assumption of fact that has been made - he had been permitted to break the law, he should lose so heavily for (say) one day's continued transgression. But the full consideration of this case, and its true analysis, have satisfied me that there is behind it a very much larger and more important principle that deprives the respondent of the right to complain of even the practical hardship referred to. That principle is really self-suggestive the moment the elements of general waiver of a contractual obligation are considered. Anyone may relinquish a right which has been created for his sole benefit. He may do so voluntarily, of course. But he cannot be compelled to do so except ata price. He may, as in cases of which Hawksley v. Outram (1) is a type, relinquish a stipulation for his benefit as a condition of getting specific performance of the contract otherwise. But where waiver is insisted upon by an opposing party there must be a price cf some sort. Parke B. in Foster v. Dawber (2) said: " It is competent for both parties to an executory contract, by mutual agreement, without any satisfaction, to discharge the obligation of that contract." I assume that no difficulties arise such as might arise from the rules of law laid down by Viscount Haldane (3), by Lord Dunedin (4) and

At a glance

Court

Decision date

Before

Source

Judgment (96 paragraphs)