Hare v Terry [1918] HCA 28; (1918) 24 CLR 468 (22 May 1918)

HIGH COURT OF AUSTRALIA

Hare Defendant, Appellant; and Terry Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of South Australia.

22 May 1918

Isaacs, Gavan Duffy and Rich JJ.

Cleland K.C. (with him H. Edmunds), for the appellant.

Mann, for the respondent.

Cleland K.C., in reply.

The judgment of the Court, which was read by Isaacs J., was as follows:—

May 22

Isaacs, Gavan Duffy and Rich JJ.

We are of opinion that this appeal should succeed.

We agree with the learned Chief Justice of South Australia and Buchanan J. that apart from the question of waiver the appellant had the right to surrender the lease. It was argued that the conditions upon which the lessor gave her consent so modified or varied the terms of the lease as to constitute in conjunction with those terms a new agreement dating from the time of consent. But we think that the proper view is that the parties acted on the basis that the lease as originally granted and registered should be preserved intact and should be transferred unaltered, and that whatever be the effect of the conditions of consent—whether amounting to new contractual relations or not, respecting which we express no opinion—they were treated as entirely separate and distinct from the lease itself. The appellant, having with the consent of the lessor been registered as transferee of the lease granted to Callel, henceforth occupied the premises "under or by virtue of" that lease, and so far fulfilled the terms of the section.

We agree with the learned Chief Justice that the occupation referred to in the section is not limited to that existing at the date the Act commenced. The crucial point of time for criterion of rights is 27th March 1915, when the poll took place; the date of commencement of the Act gives rise to no new consideration of justice, except as a starting-point for limiting the period of election to surrender.

As to the question of waiver, we agree with Buchanan J. that the terms of the transfer do not amount to a waiver. Assuming, without deciding, that they effected any alteration in mutual rights, that alteration did not affect the statutory right of surrender, but was limited to the actual duration of the term whatever that might be.

The question of waiver by the conditions of consent as distinct from alteration of the then existing terms of the lease was not pressed in argument before us.

The appeal will be allowed with costs, and judgment for defendant with costs.

Appeal allowed with costs. Judgment for the defendant with costs.

Solicitor for the appellant, C. A. Edmunds, Adelaide, by Plante & Henty.

Solicitor for the respondent, P. R. Stow, Adelaide.