Rosenblum v Brisbane City Council

High Court of Australia|1957-07-01|Before: Kitto JJ, Stanley J

High Court of Australia Dixon C.J. McTiernan, Williams Webb and Kitto JJ. Rosenblum v Brisbane City Council [1957] HCA 98

The Court delivered the following written judgment: -

Dec. 23 Dixon C.J., McTiernan, Williams Webb and Kitto JJ.

The ordinance, which forms Chap. 35 of the council's ordinances, came into force on 3rd December 1955, replacing an earlier ordinance, similarly numbered, which this Court considered in Vitosh v. Brisbane City Council [1] . It provides generally, by cl. 2, that no person shall use any land (whether having a building thereon or not) or use or erect any building or part of a building on any land, within the city, for any purpose other than residential purposes. This prohibition is to apply except as thereafter provided in the ordinance. Clause 5 makes an excepting provision: "Nothing herein contained", it says, "shall prevent the use of any land or building or part of a building for the purpose for which such land or building or part of a building was used at the date of the coming into force of this chapter, or for such other purpose as the board may permit".

The validity of the ordinance has not been challenged. The only question in the case is whether the premises mentioned in the writ were, on 3rd December 1955, used for the purposes for which the plaintiffs desire to use them, namely the purposes of a catering establishment. On that question the learned trial judge received a considerable body of evidence, oral and documentary, and in a judgment containing a detailed examination of the case he reached the conclusion that the premises were not so used.

The premises referred to consist of a block of land in a suburban area and a building which originally was a private dwelling house. The registered proprietor in fee simple is the Young Men's Hebrew Association (Qld.) Limited, which will be referred to in this judgment as the association. That company acquired the property in 1951 for use as a clubhouse, and financed extensive alterations by borrowing about £5,000 the repayment of which it secured on the property by a debenture subject to an existing first mortgage. In the ensuing years the association sought, as the learned judge put it, "to develop a centre for Jewish community life through the medium of a non-profit-making limited liability company functioning as what is ordinarily understood as a club". It suffered from financial difficulties from the beginning, but at first a considerable amount of activity went on upon the premises. Social functions of various kinds were arranged, and private functions were catered for. In 1953 the premises were much used for these purposes and for the purposes of the association itself; but then a decline set in. By May 1954, when the association had only forty members and the overdraft stood at £1,113, concern was being felt as to whether the property could be carried on with a due regard for the interests of the debenture holders. Few functions were being held in the premises. On 4th October 1954 a general meeting of the association brought itself to agree to the hiring of the premises for non-Jewish functions, though it had rejected a similar proposal a month before. The new policy produced no improvement. There was a wedding reception in November, a dinner for the Xavier Society in December, another wedding reception early in 1955, and a Younger Set function for the Xavier Society in February 1955. What functions took place between February and August 1955 the learned judge had difficulty in ascertaining. One witness spoke of several high teas, an arts group review, a ball, a dinner and hospital committee function. But the financial position was deteriorating, and ultimately, on 14th July 1955, a general meeting of the association resolved that the premises be handed to the trustees for the debenture-holders for disposal, the association continuing in possession until such time as the disposal should be completed. Between that time and the date which is here material, 3rd December 1955, only one function took place, so far as the evidence enabled the learned judge to find. That was a cocktail party given by a hospital committee on 27th October, and the payment in respect of it was made to the trustees for the debenture-holders. The association itself made no physical use of the premises at all after August. The president and secretary paid no attention to them, and they lay unused, neglected, dirty and unkempt. On 8th November, an electricity accounts collector found the doors locked and the grounds in a state of disorder and neglect. He called again on 29th November, the account being still unpaid, removed the fuses from the fascia board of the house, and inserted a piece of cardboard to interrupt the supply of current. Six months later he returned. His piece of cardboard was still intact and where he had left it. A Mrs. Smith was said by the plaintiffs to have lived in the premises as caretaker until the following June; but the learned judge found that she was not living there, though she may have visited the premises sometimes during the day, and that it was impossible for anyone to use the premises at night at any time after 29th November.

When the property fell into the hands of the trustees in July 1955, the trustees, combining with their concern for the financial interests of the debenture holders a continuing hope that the objects of the association might still be served to some extent, decided that the best course would be to find someone who would carry on the catering section of the establishment and leave some, though a restricted, use of the premises for the club activities of the association. Accordingly they refused offers to buy the property and opened negotiations with the appellant Rosenblum with a view to his conducting the catering section and running a room for wedding breakfasts and other social functions.

On 9th September, Rosenblum put before the trustees a proposal in writing. It was in the form of a letter signed "L. Rosenblum, on behalf of Maxims Pty. Ltd."; but the appellant company had not yet been incorporated and there was no company in existence for which Rosenblum had authority to write. The letter expressed a wish on the part of "the undersigned" to acquire a lease of the premises for ten years at a rental of £25 a week, with an option of renewal for five years at a rental to be "subject to review when due". Terms of the suggested lease were outlined, but only in the form of rough heads. No particular use of the premises was provided for, though there was an incidental mention of "the intended use of the property" and Rosenblum said in evidence that this was a use as a catering lounge run as a commercial proposition.

On 19th September 1955 the chairman of the trustees wrote to "L. Rosenblum Esq. representing Maxims Pty. Ltd.", stating that "in general principle" the application to lease the property had been approved by the board of trustees, subject to a number of conditions which he set out. The lease was to commence from 1st October 1955. A provision that the trustees or their assigns or nominees should have the right to use the premises on Sundays, subject to payment for cleaning, light, power and gas, reflected the thought in the minds of the trustees that some use of the premises for the club purposes of the association might prove to be possible. The letter was expressed to be a rough draft only, "binding the parties until the proper and formal legal documents shall be drawn and signed"; and it concluded by saying, "Your endorsement at the foot of each page of this letter shall be taken as an acceptance by you acting in full authority for Maxims Pty. Limited." On each page Rosenblum wrote "We confirm. L. Rosenblum for Maxims Pty. Ltd."; and he paid the trustees the equivalent of three months' rent in advance.

Rosenblum next consulted an architect, and had a sketch prepared for modernising the front of the building. On 5th October, signing his name "for Maxims Pty. Ltd.", he made an application to the council for permission to use the site "for the purpose of a catering establishment for weddings, social functions etc." In the form by which the application was made he described the association as the occupier, and gave "social club" as the nature and use of the building. In a covering letter he explained that it was intended to establish a first class catering organisation to provide for receptions of all types. The council refused the application. Nothing occurred on the premises until well into 1956. In May of that year the appellant company was incorporated, and certain alterations to the premises were effected at a cost of more than £2,750.

It seems clear that Rosenblum's intention, from September onwards, was that the appellant company, when formed, should use the premises, under his own management, for what he described in his evidence as "anything you can classify in the sphere of the activities of a catering lounge". The premises were locked up and neglected (except for the one isolated occasion of the cocktail party in October), but the equipment in the building was never removed. In fact, the letter of 19th September on which Rosenblum endorsed his assent provided for use of the piano, refrigerator, stoves, floor coverings and electrical fittings.

On these facts the appellants submit that Stanley J. ought to have found that on 3rd December 1955 the premises were used for the purposes of a catering lounge, notwithstanding that there was no physical activity upon them at that date. The case, they contend, is analogous to Schwerzerhof v. Wilkins [1] . In that case, premises equipped with an underground bakehouse had been let to a baker and used by him as a baker's premises for sixteen years. The tenancy came to an end, and the owner advertised the property for letting as a baker's premises. He used the interregnum to effect repairs to the underground bakehouse and the oven in it. A new tenant was found after an interval of four months, and he at once commenced to use the bakehouse as such. But on a day during the course of the four months, and just after the repairs had been completed, an Act had come into operation which provided that a place underground should not be used as a bakehouse unless it was so used at the commencement of the Act. The matter came before a Divisional Court on a case stated by a magistrate who had held that the place was not used as a bakehouse on the material date. The court recognised that the question under the Act was in a sense one of degree and therefore of fact, but it held that in law there was no interruption of the use of the place as a bakehouse. This necessarily meant that the expression "used as a bakehouse", in the Act under consideration, had a meaning not confined to the actual carrying on of baking operations and activities incidental thereto, but extending to the owner's conduct in treating it as a bakehouse and in particular in trying to let it as a bakehouse after having put it into repair for baking purposes.

The appellants submit that the present case is indistinguishable in principle. They accept the position that the premises here in question were, on 3rd December, to all appearances unused; but they say that the intention and desire of all concerned were the same as they had been in the active days of 1953. The activity had ceased because there was a dearth of customers, and because without revenue from the commercial side of the venture the club's activities for which the association had been formed could not be financed. But a lessee had been found in the person of Rosenblum; the premises stood equipped for use; and a resumption of the old activities waited only upon the effecting of Rosenblum's improvements and the inauguration of his new enterprise. The old purposes for which the premises had been used had therefore not been abandoned. The premises were still, in a real sense, devoted to those purposes and being used for those purposes.

It is not difficult to agree that the use of premises for a given purpose is not necessarily interrupted whenever activities for that purpose are temporarily stopped. When such an ordinance as is here in question refers to the purpose for which land or a building "was used" on a given day, it calls for an inquiry, not limited to the physical activities which might have been observed on the land or in the building on that day, but taking account of any course of user which may fairly be regarded as having been current on that day. Most forms of user of land or buildings involve not continuous activity but recurring activities. There is no inaccuracy in describing a grocer's shop as being used as such on every day of the period in which the grocer has his business there, notwithstanding that on Sundays and holidays it is locked up and no activity of any sort occurs. Whether an interruption of activity puts an end to the user must always be a question of fact, and in resolving the question in each case that arises the circumstances of that case must necessarily be considered as a whole.

In the present case the question may be approached by asking whether it is possible to point to anyone who was using the premises as a catering lounge on 3rd December 1955. The answer must be that it is not. Clearly the association was not. Its former use of the premises for the purposes of a Jewish club, assisted by the raising of revenue by means of catering activities, had diminished over a long period and finally ceased altogether, and the association had given up hope of again being able itself to use the premises. Equally clearly, the trustees for the debenture-holders were not using the premises as a catering lounge. Having had the premises thrown onto their hands by the association, they had agreed with Rosenblum, whether by a binding contract or not, to give him an opportunity to float a company and set up a new enterprise, not for the purpose of advancing the idea of a Jewish club, but in order to make profits for the new company's own benefit. The trustees had accepted a payment by way of rent in respect of a period which had not yet expired, and having thus parted with the use of the premises they could not be regarded as using them for any purpose: cf. Commissioners of Taxation v. Trustees of St. Mark's Glebe [1] . Thirdly, Rosenblum was not using the premises as a catering lounge, for though he had paid three months' rent he had not entered into possession or taken any overt step concerning them, except that he had had a sketch prepared. As to this sketch, Stanley J. took the view that as the building had not been measured up the preparation of the sketch was only a step towards interesting persons in the proposed company or in starting a user through a company to be incorporated and was not itself a user of the premises. Clearly his Honour was right. There is no reason to doubt that Rosenblum was genuinely considering ways and means of using the premises for the purposes of a catering establishment, but it would be impossible to make a finding that he had already commenced to use them for those purposes. His acceptance of the terms offered by the trustees and the payment he had made had merely gained him a period of time in which to float his company, to alter the building, and to make the staffing and other arrangements without which the intended future use could not be commenced. Finally, the premises were certainly not being used by the appellant company, for it was not as yet in existence.

So things stood on 3rd December. A former user had come to an end months before. Hopes for a similar, though not identical, user had persisted in the minds of some and were still alive in the mind of Rosenblum. But the conclusion is simply not open that the premises were the subject of any current use. They were, in plain fact, unused for any purpose whatever.

The decision of Stanley J. was correct, and the appeal should be dismissed.

At a glance

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Judgment (18 paragraphs)

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