Cohen v Lapin [1924] HCA 53; (1924) 35 CLR 247 (15 December 1924)

This was an action of ejectment tried before Campbell J. without a jury, when, on certain admissions being made, a formal verdict was by consent entered for the plaintiff. It appeared that the plaintiff leased the United Australia Hotel at Newtown to the defendant on 27th March 1919, on a weekly tenancy, but he covenanted not to put an end to the tenancy before 23rd March 1926 if the lessee observed the covenants in the lease. Clause 11 of the lease provides, inter alia, that, "if the lessee shall be convicted of any offence under the provisions of any Act now or hereafter in force a conviction whereof may either alone or in conjunction with a conviction or convictions of any other offence or offences render the licence or licences for the said premises liable to cancellation or forfeiture or render the said demised premises liable to disqualification," it shall be lawful for the lessor to re-enter.

The defendant moved the Full Court to set aside the verdict for the plaintiff and to order a new trial, or in the alternative that a verdict should be entered for the defendant. On that motion only two questions were debated, which are thus set out in the grounds contained in the notice of motion:—"(3) That there is no evidence of breach of any covenant entitling the plaintiff to re-enter at the commencement of the action. (4) That the plaintiff is estopped or otherwise prevented by the judgment of the Court in the case of Lapin v. Cohen of 18th October 1923 from claiming that he was at the commencement of the action entitled by virtue of the conviction dated 30th August 1922 to the possession of the aforesaid premises or to expel the defendant therefrom."

The first of these questions turns on the construction of the words of clause 11 of the lease. Street A.C.J., in delivering the judgment of the Court, says[1]:—"Sec. 128 of the Liquor Act 1912 provides that if a licensee is convicted of any one of certain specified offences, and if two previous convictions for any of them are proved to have been made against him within the three years next preceding, while licensee of the same premises, the Licensing Court shall cancel the licence of the premises and may disqualify them from being licensed for a period of two years. An offence under the provisions of the Pure Food Act relating to adulterated liquor is one of the offences mentioned in the section. Clause 11 of the lease provides that if the lessee shall be convicted of an offence, a conviction for which may, either alone or in conjunction with a conviction for other offences, render the licence for the premises liable to cancellation or forfeiture, or render the premises liable to disqualification, it shall be lawful for the lessor to re-enter. It is admitted, and indeed it is manifest, that convictions for offences of the kind mentioned in sec. 128 of the Act are included in the offences to which the clause refers, but it is said that it is only the third conviction for one of such offences which is aimed at, as the premises are not in danger of disqualification until then." The second ground is thus paraphrased by the same learned Judge[2]: "The other ground is that, as the conviction of the defendant took place before the first action of ejectment was begun, and as the plaintiff might have asserted the right of re-entry which it gave him in that action, but did not do so, he is debarred from relying upon it in any subsequent proceedings as a ground for ejecting the defendant." The Court dealt with both these grounds and held that neither of them was established. No other question was discussed or determined.

On appeal to this Court the grounds argued before the Supreme Court were again taken and argued before us, but in addition another argument was pressed upon us. It was said that, even if a plaintiff could bring ejectment on a title in respect of which he had already failed once or more than once against the same defendant, still a judgment in ejectment was conclusive between the parties as to the right to possession during the very period in respect of which that judgment determined the right to possession. In this case the writ in the first action of ejectment asserted a right to possession on 30th August 1922 and on that day alone, since the writ was issued on that day claiming possession on and since 30th August 1922, and the judgment declared that the plaintiff was not entitled to possession as in the writ alleged. In the present action the writ, which was issued on 21st August 1923, claimed the right to possession on and since 30th August 1922, that is to say, from 30th August 1922 till 21st August 1923. Now, it has long been established by competent authority that a judgment in an action of ejectment does not finally settle the question of title between the parties to the action, but merely the right to possession as between the parties at a given time; but we can find no authority, nor any reason grounded on principle, which prevents us from holding that the right to possession of land on a given date, once settled between parties in an action of ejectment, is finally settled as between them; and it would follow that the judgment in the first action of ejectment between the parties in the present action should be regarded as having finally determined between them the right to possession on 30th August 1922. We think, however, that it is unnecessary for us to consider whether the defendant in this action would gain any practical advantage if he were able to rely on the fact that the plaintiff is estopped from establishing a right to possession on the first day of the period during which he now claims that he is entitled to possession. His appeal to the Supreme Court and his argument there were not based on any such contention; indeed, the grounds of appeal both in the Supreme Court and here are expressly limited to the question of the plaintiff's right to possession at the commencement of the action, namely, 21st August 1923. In our opinion the judgment of the Supreme Court is correct in respect of all the points raised for argument and argued before it. The former contention which has been raised before us was not raised in the grounds of appeal in the Supreme Court or argued before it nor was it raised in the grounds of appeal to this Court, and we do not think it should now be entertained.

Two grounds were argued in support of the appeal, namely, (1) that the conviction of 25th July 1922, under the Pure Food Act 1908, did not give a right of re-entry under clause 11 of the lease; and (2) that the judgment in the former action of ejectment estopped the respondent in respect of the issue in this action. Both points are questions of law upon construction of documents and upon facts admitted or proved beyond controversy, and, therefore, even if raised for the first time before us, we are bound to pronounce on them (Yorkshire Insurance Co. v. Craine[3]).

As to the first point, I am of opinion that it is not sustainable. One of the provisions of clause 11 of the lease is that, "if the lessee shall be convicted of any offence under the provisions of any Act now or hereafter in force a conviction whereof may either alone or in conjunction with a conviction or convictions of any other offence or offences render the licence or licences for the said premises liable to cancellation or forfeiture or render the said demised premises liable to disqualification," then it is to be lawful for the lessor to re-enter and to oust the lessee, &c. It is admitted that the conviction in June 1922 was a solitary conviction, and of itself would not have the effect stated. But whether it be a "conviction" which "may in conjunction with" other convictions, within the meaning of the contract, have such effect depends upon the effect under the Liquor Act 1912 of such a conviction. There are two sections of direct importance in that Act. Sec. 128 in sub-sec. 1 penalizes licensee and owner in certain cases. If the licensee is convicted of any offence therein described—which includes such an offence as that for which the conviction of June 1922 took place—then, provided the same licensee was within three years twice previously convicted, the Court shall cancel the licence and may disqualify the premises for two years. The distinction between what the Court shall do in relation to the actual offender and what it may do in relation to the owner who is not the actual offender is all-important. In sub-sec. 2 it is provided that "where a licensee is convicted of any such offence the clerk of the Court before which the conviction was held shall give notice in writing thereof to the owner of the premises." It is clear that even for a solitary conviction—I do not say a first conviction, because there may be no subsequent conviction—the notice must be given to the owner. And why? This will appear later. Then sec. 129 provides that, if there have been four convictions for any of the offences mentioned in sec. 128, and whether against the same licensee or successive licensees, the premises may be disqualified for two years. Of course, sub-sec. 2 of sec. 128 applies also to the convictions mentioned in sec. 129. It was argued that on the true construction of sec. 128 the only conviction rendering the licence subject to be cancelled and the premises liable to disqualification was the third. But that is not sustainable. So far as liability to the penalty is concerned the three convictions are on an equal footing—their conjunction is necessary, and that is all. The one distinction between them—and that is the effect of the special mention of the third conviction—is that the period of two years' disqualification is reckoned from the date of the last conviction because its happening creates the necessary conjunction.

Now, with reference to the difference between the penalty on the actual offender which must be inflicted and that on the owner which may be inflicted:—As stated, sub-sec. 2 of sec. 128 requires the owner to be notified of any conviction of the nature mentioned. The reason of that is found in sec. 130, which provides for an appeal by an owner whose premises have been disqualified and who was not the actual occupier. He may appeal, but only on certain grounds. He may show that sub-sec. 2 of sec. 128 was not followed, and, therefore, that he had no notice of such a conviction as that of June 1922. He may show that, because of the provisions of a lease, if made before 1st December 1905—that is, eight days before the passing of the Liquor (Amendment) Act 1905 (No. 40) containing the disqualification provisions in sec. 30 of that Act—or because of some statute, he could not evict the tenant before the last offence, or he may show that with reasonable diligence he could not have evicted the tenant in the interval. The owner may succeed on any of those grounds. These provisions, read together, are in my view decisive that clause 11 of the lease must be held, for the purpose for which it is obviously directed, to include the conviction of June 1922. The first point therefore fails.

The second point raises the question of the effect of a judgment given in favour of the defendant in a prior action of ejectment where the same period is named in the two writs as the period during which the plaintiff claims to be entitled to possession. The action of ejectment has behind it a long history, during which the action has evolved by many stages which have successively more or less freed the proceeding from technicalities that social progress found unsuited to the proper administration of justice. The state in which it exists in New South Wales is that at which it had arrived in England over seventy years ago, and has there been replaced for nearly thirty years by modern procedure, bringing the action more into line with other forms of litigation—an example followed elsewhere in Australia.

We have had the benefit, both in the argument under appeal and in the argument at the Bar, of very instructive references to the earlier history of the action, and the effect of a prior judgment. Since the argument we have also been referred to some further authorities on the same subject.

Unfortunately authorities prior to 1853, while most valuable in some respects, are to be cautiously used on the point now under consideration. Before 1853 the plaintiff was first a real and then a fictional lessee, and his entry at first real and then fictional was necessary, and was effectual in giving the required possession only if he had title to enter (see per Lord Blackburn in Bristow v. Cormican[4]). But although the action of ejectment has preserved, and even under the Judicature Act still preserves, its cardinal character as a possessory action only, one essential change took place in 1853. It is true that under the New South Wales Act—as in England—the issue as to title to be tried is that stated in the writ (sec. 222), qualified only by the relaxation in sec. 224 where the title ceases before trial; yet for present purposes the governing change is the nature of the judgment. If for the plaintiff, it is that he "do recover possession of the land," not as formerly of "his said term yet to come of and in the tenements" (see Adams on Ejectment, at p. 406). If for the defendant, then, according to the statutory forms, it is that the defendant "be acquitted," that word having reference to the "supposed trespass and ejectment above laid to his charge" as it used to be pleaded (Adams on Ejectment, pp. 410, 412), or, according to practice forms, "that the plaintiff take nothing by his said writ and that the defendant do go without day" &c. The former judgment in the present case was in the latter form, and establishes no more than that the plaintiff in that action was not entitled to possession by reason of the entry made by issuing the writ. The position so far as a plaintiff's judgment is concerned is worked out quite clearly and with great precision in the case of Harris v. Mulkern[5]. It is there plainly shown that, during the period immediately preceding the Common Law Procedure Act, a judgment in ejectment for the plaintiff was a judgment that he was entitled to the term laid in the declaration, and that bound both parties; and, further, that this was so whether the judgment was after verdict or by default of appearance. It was also explained that, though, subject to amendment, the issue in a trial would, even after the Act, have been whether the title as alleged in the writ was proved—and, if not, the plaintiff would fail—yet, even if he succeeded on that issue, the judgment he obtained was not a judgment establishing that title, but a judgment to recover possession, and, therefore, establishing his title at the time the action was brought. There is nothing, said the Court, in the judgment which can make it operate as an estoppel with reference to the duration of the plaintiff's title. As to how far it is evidence of that duration is, as there said, another question.

The meaning of sec. 249 of the Common Law Procedure Act 1899, read by the light of that case, is that the judgment had, as before, the effect of establishing a possessory right to the land, but, so far as estoppel is concerned, that must be determined by what the judgment itself actually declares. In the very recent case of Elliott v. Boynton[6] Pollock M.R. says: "The judgment in an action of ejectment—now an action for the recovery of land—does not, per se, relate back to the date when the plaintiff's title was laid or arose, and particularly where the defendant—the lessee—was not originally a trespasser or wrongdoer, and some act was necessary to found the plaintiff's right of action." The former judgment then cannot operate here as an estoppel. The same recent decision[7], however, emphasizes the point that in such a case as this the plaintiff's right of possession is not complete—because his title to have it is not complete—until re-entry for breach of condition. The former writ is useless for that purpose now, because of the judgment for the present appellant. The only entry available for the present action is the new writ, and, therefore, the respondent's title dates from that day, 21st August 1923. The judgment in Harris v. Mulkern[8] shows that in the absence of amendment the respondent must fail, because the issue is not proved. Cleasby B. says[9]: "In our proceedings, if the case went to trial upon such a writ as the present" (that is, stating the beginning of the plaintiff's title), "the question would be, whether the plaintiff was entitled at that time, and the plaintiff would fail unless he proved that title, subject of course to an amendment of the writ: sec. 180 of the Common Law Procedure Act 1852." Secs. 116, 259 and 260 of the New South Wales Act give the most ample powers of amendment if necessary. But here I do not think it is necessary. There being no estoppel, the truth of the matter as to the respondent's title to possession was open. Whatever be the technical position as to the former judgment being admissible as evidence, it cannot compete with the proof of the actual right, namely, the happening of the event prescribed by clause 11 of the lease and the entry by the issue of the writ. That establishes the truth of the issue in the action.

I would add that in my opinion the first point is well within grounds 1, 2 and 3, and the second point within grounds 1 and 4, of the notices of appeal to the Supreme Court and this Court. A new legal argument in support of a ground taken is, in my opinion, always admissible and quite as much as a new legal ground for an appellate decision of the Court.

[1] (1924) 24 S.R. (N.S.W.), at p. 377.

[2] (1924) 24 S.R. (N.S.W.), at p. 378.

[3] (1922) 2 A.C. 541, at pp. 554, 555; 31 C.L.R. 27, at p. 30.

[4] (1878) 3 App. Cas. 641, at p. 661.

[5] (1875) 1 Ex. D. 31.

[6] (1924) 1 Ch. 236, at p. 248.

[7] (1924) 1 Ch., at p. 246.

[8] (1875) 1 Ex. D. 31.

[9] (1875) 1 Ex. D., at p. 35.

High Court of Australia

Cohen v Lapin [1924] HCA 53; (1924) 35 CLR 247 (15 December 1924)

HIGH COURT OF AUSTRALIA