David Jones Ltd v Leventhal [1927] HCA 53; (1927) 40 CLR 357 (8 December 1927)

David Jones Limited Plaintiff, Appellant; and Leventhal and Others Defendants, Respondents.

The appellant is the lessee of certain land in the City of Sydney under a lease for thirty-three years from 1st August 1909 granted by the predecessors in title of the respondents. The lease contains a covenant by the lessee to pay all rates, taxes, charges and assessments, whether parliamentary, municipal, local or otherwise, which were or thereafter should be imposed, charged or assessed upon or in respect of the demised premises or the rent thereof, or payable by the owner or occupier in respect thereof, landlord's property tax or land tax only excepted, and by a memorandum of even date endorsed on the lease it was agreed between the lessors and the lessee that the lessors would pay the landlord's property tax or land tax or any municipal tax on the unimproved capital value of the land by any competent authority rated, imposed or levied, subject to a proviso which is not now material. The lease contained a covenant for quiet enjoyment in the usual qualified form and a proviso for re-entry on failure by the lessee to observe any of the covenants or agreements therein contained on the part of the lessee.

The land comprised in the lease was subject to, and ratable in respect of, the rate imposed by the Sydney Harbour Bridge Act 1922, and a dispute arose between the appellant and the respondents with reference to the liability as between them for payment of this rate, each claiming that under the said lease and memorandum the other was liable to pay it.

On 20th July 1926 the respondents served on the appellant a notice in the usual form under sec. 129 of the Conveyancing Act 1919 requiring the appellant to remedy the breach of covenant alleged to have been committed by its refusal to pay the rate above mentioned; and on 30th October 1926, the appellant not having paid the rate, the respondents issued out of the Supreme Court in its common law jurisdiction a writ in ejectment directed to the appellant to recover the land comprised in the lease from the appellant under the power of re-entry contained in the lease by reason of the non-payment by the appellant of the said rate.

In December 1926 the appellant instituted a suit in the Supreme Court of New South Wales in Equity claiming (1) a declaration that the appellant was not liable to pay any part of the rate in question and had not committed any breach of covenant and that the respondents were not entitled to re-enter; (2) alternatively, if the appellant had committed a breach of covenant, relief against forfeiture consequent on such breach; (3) an injunction restraining respondents from committing or continuing to commit a breach of the covenant for quiet enjoyment contained in the lease; (4) an injunction restraining respondents from proceeding with the action of ejectment; (5) costs and further or other relief.

The facts stated above were alleged in the statement of claim; and, in addition, the appellant alleged that the respondents intended in the ejectment action to claim mesne profits, and that if the contention of the appellant proved to be incorrect and the respondents became entitled to re-enter for breach of covenant the appellant would or might be seriously and irreparably damaged if the action proceeded to trial and judgment. An interim injunction against proceeding with the action was thereupon granted by consent and without admissions.

On the suit coming on for hearing counsel for the respondents demurred ore tenus to the statement of claim on the ground that the statement of claim disclosed no right to relief in equity. After argument Long Innes J. held, firstly, that so far as the statement of claim claimed relief against forfeiture under the Conveyancing Act the demurrer must succeed. The correctness of the decision on this point was not challenged on this appeal and is not now open to question, not being covered by the grounds stated in the notice of appeal. And he held, secondly, following the decision of Harvey C.J. in Eq. in Tooth & Co. v. Coombes[1], that the subject matter of sec. 10 of the Equity Act 1901 as amended by sec. 18 of the Administration of Justice Act 1924 was still a suit for equitable relief or relating to equitable rights and titles. Thirdly, he held that the fact that the appellant might have a verdict rightly entered against it in the ejectment action for mesne profits did not constitute an equity entitling it to equitable relief under the inherent jurisdiction of the Supreme Court in Equity. So far his decision was in favour of upholding the demurrer; but he went on to decide that the suit, except so far as relief was claimed under the Conveyancing Act, might be regarded as a suit to restrain the respondents from continuing to commit a breach of the covenant for quiet enjoyment and that to that extent the demurrer failed. In so deciding he relied on the decisions in Ricketson v. Smith[2] and Kemp v. Frey[3]. The demurrer having been disposed of, the learned Judge proceeded to decide what he described as "in effect the question for determination," namely, whether the lessor or the lessee was liable to pay the rate in question. He held that as between them the lessee was liable to pay the rate, and that it followed that no breach of the covenant for quiet enjoyment had been established against the respondents and he therefore dismissed the suit.

The appellant having instituted an appeal from the decree dismissing the suit, the respondents gave notice that on the hearing of such appeal they intended to challenge the correctness of the order so far as it overruled the demurrer ore tenus; and the first question calling for consideration is whether the order made by the learned Judge on the demurrer, except so far as such order dealt with the relief claimed under the Conveyancing Act, was correct. In my opinion Long Innes J. was clearly right in holding that sec. 10 of the Equity Act 1901 as amended by sec. 18 of the Administration of Justice Act 1924 applied only in proceedings for equitable relief or relating to equitable rights or titles. This section as amended provides that "no suit shall be open to objection on the ground that a merely declaratory decree is sought thereby and the Court" (i.e., the Supreme Court in Equity) "may make binding declarations of right whether any consequential relief is or could be claimed or not." The point now raised is covered by the decision of Harvey C.J. in Eq. in Tooth & Co. v. Coombes[4], with which I agree, and I have nothing to add to the reasons given by him in support of the conclusion at which he arrived. During the argument in this Court it was suggested that under rule 8 (a) of the Rules of Court for Originating Summons, which provides that "any person claiming to be interested under a deed, will, or other written instrument, may apply, by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested," the appellant was entitled to obtain in this suit the declaration claimed even though it might not be entitled to any equitable relief. Without deciding whether this rule can be brought into operation except in proceedings instituted by originating summons, I am of opinion that the operation of the rule is limited to cases in which equitable relief is sought or the right or title relied on is equitable. In McDonnell v. Coles[5] Harvey J. so decided, and I agree with him in the reasons which he gave in support of that conclusion.

The remaining question on this part of the case is whether Long Innes J. was right in deciding that the statement of claim contained a claim for equitable relief and the necessary allegations to support that claim. The learned Judge does not expressly state in his reasons for judgment what allegations in the statement of claim he regards as stating facts constituting a breach of the covenant for quiet enjoyment, but, from his reference to Ricketson v. Smith[6] and Kemp v. Frey[7] and from the form of his order, I gather that he regarded the statements in pars. 8, 9 and 10 of the statement of claim as sufficient allegations of facts constituting a breach of that covenant. The allegations in these paragraphs may be summarized as follows:—A dispute arose between the appellant and the respondents with reference to liability as between them for payment of the Sydney Harbour rate, each asserting the liability of the other and denying his own. Appellant not having paid the rate, respondents on 20th July served on appellant a notice under sec. 129 of the Conveyancing Act 1919 requiring it to remedy the breach of covenant alleged to have been committed by default in payment of the rate and stating that respondents would be entitled to re-enter or forfeit the lease in the event of failure to comply with the notice within a reasonable time. On 30th October, appellant having failed to comply with the notice, respondents issued out of the Supreme Court in its common law jurisdiction a writ in ejectment to recover the land from appellant, their claim being founded on the non-payment by appellant of the said rate and on no other ground.

These allegations amount to no more than that the respondents, asserting that the appellant has committed a breach of covenant entitling them to re-enter under the proviso contained in the lease, which the appellant denies, have definitely elected to re-enter and determine the lease and for that purpose have instituted proceedings in the appropriate jurisdiction of the Supreme Court. There is no allegation of any disturbance of or interference with the possession or enjoyment by the appellant of the demised premises, unless the institution of legal proceedings by the respondents to enforce their claim to re-enter under the proviso amounts to such a disturbance or interference. No authority was cited which supports the contention of the appellant that the mere institution by a lessor of legal proceedings to enforce his alleged right to re-enter under the lease amounts to a breach of the covenant for quiet enjoyment; and in my opinion the proposition cannot be supported on principle. The issue of a writ in ejectment does not, without more, operate as a determination of the lease (Dendy v. Evans[8]); nor does it, in fact, interfere with or disturb the possession or enjoyment by the lessee of the land demised. It is not until judgment has been obtained in the action that any such interference or disturbance results. If the mere issue of a writ in ejectment without more amounts to a breach of the covenant for quiet enjoyment, what is the result if after issue of the writ and before judgment the plaintiff at law abandons the action? In such a case the relative positions of the lessor and lessee remain precisely as they were before the issue of the writ: there has been no physical interference with or disturbance of possession or enjoyment by the lessee, nor has the existence or validity of the lease been in any way affected.

Can it, then, be said that the mere issue of the writ is a breach of the covenant for quiet enjoyment giving rise to a right of action in the lessee? I think not. The lessor in such a case has done no more than avail himself of the remedy prescribed by law for the assertion of the right of re-entry which he claims, and the issue in the action is whether he is entitled to re-enter. If the lessor had in fact re-entered, as in Ricketson v. Smith[9] and Kemp v. Frey[10], the case might be different, but the decisions in those cases have no application to the facts of this case. For these reasons I am of opinion that Long Innes J. should have allowed the demurrer and dismissed the suit. I may add that the evidence subsequently taken in the suit disclosed no relevant facts in addition to those alleged in the statement of claim.

This appeal arises in a suit in equity brought by the appellant to obtain (1) a declaration that the appellant is not liable under the provisions of its lease with the respondents to pay a certain rate made under the Sydney Harbour Bridge Act 1922; (2) alternatively relief from forfeiture for breach of covenant in not paying the rate; (3) an injunction to restrain the defendants from committing a breach of the lessor's covenant for quiet enjoyment and from proceeding with an action of ejectment instituted by them.

The learned primary Judge (Long Innes J.) held (a) that an alternative claim for relief from forfeiture, that is, one denying any breach, and which is based on sec. 129 (2) of the Conveyancing Act 1919, is not maintainable, and (b) that the suit was otherwise within the jurisdiction of the Court since the action in ejectment was, unless justified, a breach of the covenant for quiet enjoyment and the subject of injunction in equity. His Honor, however, held that in law the respondents were right and dismissed the suit. The decision of the learned Judge as to the claim for relief from forfeiture under the statute is not appealed from or questioned, and so stands binding on the appellant. The appellant contends that the decision respecting its liability to pay the rate was wrong and should be reversed. The respondents, however, have by notice appealed from the decision that the circumstances disclose jurisdiction. The matter is not simply in the position of a demurrer on the pleadings. It accepts all the evidence, which consists simply of documents and such inferences as the Court draws from them, and the respondents contend that the circumstances so appearing raise no question of equitable relief and therefore no jurisdiction in the Court of Equity to determine the question of liability or non-liability to pay the rate. Obviously this question of jurisdiction must first be determined. The respondents' contention is, shortly, that the only jurisdiction possessed by the learned Judge sitting as the Court of Equity was to determine equitable claims, and this was not such a claim. The appellant's argument is that there was a right to equitable relief on general equitable principles and, if not, that, both by reason of the general jurisdiction of a Supreme Court Judge always appertaining to his office and by reason of the generality of the Fourth Schedule to the Equity Act 1901, there is jurisdiction in the Equity Court to decide all classes of litigation brought before the Court, and that the method by which the matter is instituted is immaterial. The issue as to whether the conduct of the respondents complained of by the appellant gives rise to a claim for equitable relief may be profitably considered first, because, if it does, we need go no further. The covenant for quiet enjoyment is, as usual, in the conditional form: "That they paying the said rent hereby reserved in manner aforesaid and performing all and singular the covenants herein contained on their part to be performed shall and may quietly enjoy the said demised premises during the said term without any interruption from or by the said lessors their his or her heirs or assigns or any person or persons lawfully claiming or to claim through under or in trust for him her or them." Then there is a proviso for re-entry if, inter alia, the lessee's covenants are not observed and kept. If the lessors had re-entered or if at the time of suit they were threatening and intending to re-enter, I have no doubt, having regard to the nature of the property and the use to which it was being put, the equitable remedy of injunction to keep the matter in statu quo pending legal determination of the right would have brought the matter within the equitable jurisdiction. There would, in the circumstances of this case, have been irreparable damage in the sense that damages could not have been truly or adequately assessed in the event of the appellant's view being judged to be correct. So that the first question is one of fact to be ascertained from the undisputed circumstances in evidence.

The only ground for imputing threat or intention to re-enter by way of self-redress is that the respondents on 20th July 1926 served a notice of breach of covenant under sec. 129 of the Conveyancing Act 1919, in the form provided by Schedule VI. to the Act, and including the statutory note stating: "By sec. 129 of the Conveyancing Act 1919 the lessors will be entitled to re-enter and forfeit the lease in the event of the lessees failing to comply with this notice within a reasonable time." I do not offer any opinion as to whether that notice would, without more, sustain an allegation that the lessors "threatened and intended" to re-enter. It merely notifies the lessee that the lessors will in a given event be "entitled" to re-enter. But since he is also "entitled" to sue, and as the notice is by statute a condition precedent to enforceability by "action or otherwise," the notice would seem to be equally consistent with action or self-redress of re-entry. Very slight circumstances might, of course, justify a legitimate apprehension of an irreparable intrusion. However that might be, the course of events in this case demonstrates that no such intention existed on the part of the lessors at all evants when the suit was instituted. Three months and a half elapsed without either compliance or re-entry. Then the lessors commenced an action in ejectment. Service was accepted on 26th November. The correspondence shows that both parties well understood that the respondents were intending to proceed only by action and, but for a difference as to mesne profits, a special case would probably have been agreed to as provided by sec. 221 of the Common Law Procedure Act 1899. There was neither re-entry in fact nor, at any material time at least, any threatened or intended re-entry. The case of Stannard v. Vestry of St. Giles, Camberwell[11] is much in point on this branch. Consequently Ricketson v. Smith[12] is irrelevant. That was a case of attempted self-redress. The appellant then falls back on the ejectment action. There is no equity arising from the relation of the parties or the nature of the controversy or the remedial necessities of the case. Under the older practice the question would have to be determined at law (per Lord Kingsdown in Imperial Gas Light and Coke Co. v. Broadbent[13]). An injunction to restrain the plaintiff from suing at common law simpliciter is unthinkable. It is the right of any person to enter His Majesty's Courts for redress whether recovery of moneys or enforcement of rights. Apart from statute a person is incompetent to abandon that right. But there may be circumstances which impose on him a conscientious duty towards the defendant not to institute process for the purpose, and observance of that duty a Court of equity will, in a proper case, compel. What additional circumstance is there here to attract equitable jurisdiction? Not the Conveyancing Act, because that is finally decided against the appellant. Not the construction of the contract, for that is the same at law as in equity. It is suggested that the claim for mesne profits made a difference. But there is nothing in that legal claim to raise an equity or a claim to interim interposition of a Court of equity. In Stannard's Case[14] the Master of the Rolls said: "Where the Legislature has pointed out a mode of proceeding before a magistrate it is not, as a general rule, for another Court to interfere to stop that proceeding by injunction" (see also Barraclough v. Brown[15])—a fortiori where the Legislature has made specific provision for ejectment actions to be tried on the common law side of the Court and by a jury. The question that divides the parties and determines their rights is purely a common law question and can be well settled in the ejectment action. It is for that reason that actual entry is not necessary before action in such a case. In Goodright d. Hare v. Cator[16], where that was held, Lord Mansfield for the Court said: "An ejectment being a mere creature of the Court, framed for the purpose of bringing the right to an examination, an actual entry can be of no service." In Aslin v. Parkin[17], cited by Pollock M.R. in Elliott v. Boynton[18], it was stated that the old ejectment action was "to force the parties to go to trial on the merits." It would be strange if the action, which is to avoid actual entry and was devised by the law itself to enable the Court to determine conflicting claims, should be regarded in law as actual entry so as to make it a trespass and therefore prima facie wrongful. That is in every way a fundamental consideration in this case. Bringing an action of ejectment in these circumstances is not self-redress and is not a violation of any right that exists: it is simply the assertion of an existing right, a right it may be to terminate a tenancy, but always a right. That right is the issue at the trial. "Litigation," said Lord Buckmaster for the Privy Council in Waimiha Sawmilling Co. v. Waione Timber Co.[19], "is the means by which a disputed interest in land can be established." Apart from some special circumstance recognized as an equitable ground of interposition a Court of equity would not intervene. In Weller v. Smeaton[20] the Lord Chancellor, in a suit for quiet possession of a mill, said that except in one case not followed the Court had never "interposed in a mere question of right between A and B, they having an immediate opportunity of trying the right at law, which would be definitive." (See also Tenham v. Herbert[21].) No doubt where the right to terminate a tenancy arises in conformity with the provisions of a lease, whether those provisions are express or implied, a writ in ejectment is an election to exercise the contractual right. It unequivocally shows the intention to exercise the right (Clough v. London and North-Western Railway Co.[22]). It may in a sense be called an election to rescind the contract of letting. But it is in that case a rescission which is described by Fletcher Moulton L.J., in In re Atkinson and Horsell's Contract[23], in these words: "Rescission is a volitional act of the party who is not guilty of the breach of the contract, taking advantage of a breach that is complete on the part of the other party to the contract to exercise the right which the law gives him of terminating the contract." In such case the words of Lord Sumner in Macaura v. Northern Assurance Co.[24] are applicable, where the learned Lord says: "The defendants do not repudiate the policy or dispute its validity as a contract; on the contrary, they rely on it and say that, according to its terms, express and implied, they are relieved from liability." Repudiation is a denial of the contract or of its validity or of any intention to be bound by or to perform its terms even though it stand as it is. Even if there were repudiation it would not suffice.

It was suggested that treating the covenant as a negative covenant the equitable jurisdiction would thereupon be attracted. But that is too wide a proposition. It would still have to be ascertained whether any ground of equitable right or remedy existed. It was suggested and pressed that the covenant for quiet enjoyment is in substance a negative covenant. I think it is; for how otherwise can it be practically regarded? The suggestion went so far as to maintain that the mere presence of such a covenant attracted equitable jurisdiction. That is much too broad a proposition, and I think the error is easily explained. The doctrine of negative covenant, or, more properly in these days, negative stipulation, was well established as a recognized head of equity. Before the introduction of the Judicature Act in England, a Court of equity, when relief was sought, always had to consider two matters—first, whether the facts brought the case within the jurisdiction of equity, and next, if it did, whether the circumstances made the exercise of discretion proper. In Hoare v. Bremridge[25], in 1872, Lord Selborne L.C., in dealing with what he termed "the present state of the law," pointedly distinguished between these two considerations. In 1873, while still under that state of the law, the same Lord Chancellor, in Wolverhampton and Walsall Railway Co. v. London and North-Western Railway Co.[26], adverted to the change of "forum." After the Judicature Act all difficulty as to jurisdiction disappeared. The Court became one Court—one forum—exercising complete jurisdiction. The second branch alone has since been open to question. For this reason all later cases, such as Doherty v. Allman[27], contain no allusion to jurisdiction. That is settled. In New South Wales, however, the older situation still exists, and so we have to inquire what a Lord Chancellor, for instance, would have done in the present case if appealed to on the ground of negative covenant. There was, in the first place, one essential condition in respect of every negative stipulation. The condition when stated would be recognized as obvious, and yet the present case shows how easily it may be overlooked. The condition is expressly stated in several cases, among which the following are instances:—In Dietrichsen v. Carburn[28] Lord Cottenham referred to "the equitable jurisdiction to restrain by injunction an act which the defendant by contract or duty was bound to abstain from." It is immaterial how the defendant's obligation to abstain arises, but the plaintiff must show a violation or attempted violation of that obligation. In De Mattos v. Gibson[29] Turner L.J. says: "In order to entitle the plaintiff to an injunction against Gibson, he must show that Gibson has done, or threatened to do, some act which has interfered with the performance of the contract." In the Wolverhampton Case[30] Lord Selborne's words were: "If the substance of the agreement is such that it would be violated by doing the thing sought to be prevented then the question will arise whether this is the Court to come to for a remedy." Later on, on the same page, he speaks of the change of "forum." The meaning of that is this: the test of jurisdiction of a Court of equity in relation to a negative covenant was to see whether the act complained of is a violation of the defendant's covenant (see per Lord Shaw for the Privy Council in Lord Strathcona Steamship Co. v. Dominion Coal Co.[31]); it is not whether the plaintiff has committed a breach of his covenant. To adopt the latter as the issue is to mistake the measuring rod. And yet that is precisely what, with sincere deference, has been done by the learned primary Judge, and what the appellant invites this Court to perpetuate. The real issue is whether the defendants in the equity suit, the landlords, by any act of theirs, actual or threatened, have broken or intend to break their covenant for quiet enjoyment. The issue adopted in the Supreme Court as "the prior issue," and pressed upon us here, is "Has the tenant committed a breach of his covenant to pay a tax?" There are cases like Ricketson v. Smith[32] and Kemp v. Frey[33], where the second is decisive of the first. If the landlord under the proviso for re-entry actually enters, then the test of whether he has violated his negative covenant is whether the tenant has broken his affirmative covenant. That is what Parke J. points out with some emphasis in Dawson v. Dyer[34]. But where the landlord has done no act of commission or omission resulting in actual interruption, then the first question is one of law: Can an action of ejectment for alleged right of possession by virtue of a power of re-entry be regarded in law as a violation of the covenant for quiet enjoyment, whether the tenant has broken his covenant to pay or not? Has a Court of equity ever so regarded it? If not, there is no alleged violation of the negative covenant, the essential condition of equity jurisdiction in such a case does not exist, and the demurrer must prevail and the suit be dismissed. Now, it is remarkable that throughout the centuries of chancery jurisdiction not a single case can be found to support the appellant's view—if we except the case referred to by Lord Thurlow. There are many which demonstrate its error. The jurisdiction of equity has expanded in many directions but always within the bounds of seeking some equitable ground of interposition. Lord Redesdale, in his work on Pleading, 4th ed. (1827), at pp. 134, 135, refers to the removal of impediments to the fair decision of a question at law, but he is quite distinct that unless an equitable ground of interposition appears the Court will not assume jurisdiction. The paragraph concludes: "If the matter suggested in a bill as an impediment to the determination of a question in a Court of ordinary jurisdiction in fact is not so, the defendant may also demur; for then there is no pretence for the interference of a Court of equity." Equitable grounds of interim preservation of property, irreparable injury, &c., are on a separate basis. So are perpetual injunctions to quiet litigation after repeated ejectment actions and even ejectment actions contrary to a decree already made. Bringing an action in a Court of law and thereby invoking the King's justice is fundamentally different from any act of self-redress, and Courts of equity have always so regarded the matter. For instance, in Earl Portsmouth v. Partridge[35] Kindersley V.C. refused an injunction to restrain an action relating to the title to land. The Vice-Chancellor said[36]: "The Court which had jurisdiction was clearly the Court of law, this Court only interfering where there were equitable circumstances which rendered it unjust, as against the defendant at law, that the action should go on." That principle was carried out in ejectment—apart from removing impediments, &c.—by rigidly refusing to interfere unless it was clearly shown that for some reason the defendant at law must fail at law. If not, he had no right, as he had no necessity, to ask for the assistance of a Court of equity and the practical usurpation of another jurisdiction. In Hudson v. Temple[37] Sir John Romilly M.R. restrained proceedings at law on equitable grounds, but in accordance with invariable practice required an undertaking to give judgment at law, execution being meanwhile stayed. In Brown v. Newall[38] Lord Cottenham reversed a decision of the Vice-Chancellor granting an injunction to stay an ejectment. The Vice-Chancellor had followed the ordinary rule in so far as he directed that the plaintiffs should give judgment at law. But Lord Cottenham held that, as on the facts the conclusion could not be arrived at that there was no defence at law and as there was no other equity disclosed, the injunction should not have been granted, and there was not any ground on which it could be supported. The case is specially strong because the plaintiffs alleged in the pleadings that they had no defence at law, but the Chancellor refused to be bound by that allegation and judged of the legal consequences for himself, holding that the defence was available at law. In Hill v. Barclay[39] Lord Eldon recognizes the condition of equitable intervention that there is no defence at law and therefore the tenant is "required to give judgment." In Home v. Thompson[40] Sir Michael O'Loghlen M.R. said: "It is quite of course, when a tenant comes to a Court of equity for relief against an ejectment, to require him to withdraw his defence at law."

It being plain, therefore, that the mere bringing the action of ejectment in asserted vindication of a landlord's contractual rights cannot be regarded per se as a breach of his covenant for quiet enjoyment, we are driven, as Lord Cottenham was in Brown v. Newall[41], to ask a further question. What circumstances of oppression, bad faith, irreparable damage or other, recognized as attracting equity jurisdiction, are alleged or proved? Admittedly none. The negative covenant therefore cannot aid the plaintiff.

That brings us to the point of the statutory jurisdiction of the Court of Equity in New South Wales. The power of the State Legislature is unquestionable to apportion the jurisdiction of the Supreme Court at its discretion. Not only the statutes quoted during the argument but also sec. 5 of the Colonial Laws Validity Act 1865 place that power beyond discussion. In various statutes the power has been exercised. I have in previous cases stated my opinion on this up to a certain point. Other considerations are now relevant. As to these I would very briefly refer to the systematic codification of the apportionment and distribution of Supreme Court jurisdiction effected by a series of Acts, namely, the Common Law Procedure Act, No. 21 of 1899, regulating "process, practice, and mode of pleading at law" and dealing with "actions" not "suits." Equitable considerations were introduced only to a limited extent (secs. 95 to 97) and as incidental to an action: this is closely analogous to the extension of incidental common law issues to equity suits. In 1900, Act No. 35 consolidated legislation relating to the organization of the Supreme Court generally. Except for certain matters immaterial here, no power is given to a single Judge to exercise the common law jurisdiction of the Court. One Judge sitting alone could not do at common law what has been done in this suit, namely, give judgment in the rights of the parties. The contention that the equity Judge in determining the issue could be regarded as exercising the general jurisdiction of a Judge of the Court cannot be supported. In the same year Act No. 49 was passed to amend the procedure of the Supreme Court. Common law and equity were treated as distinct branches having separate jurisdiction. Sec. 10 under "Equity Procedure" introduced the originating summons as a possible alternative to a formal statement of claim, but only for "persons seeking equitable relief." Rules of Court may be made. A schedule of rules is enacted to apply to "all matters to which they relate" until altered, added to or rescinded. The matters to which they relate are indicated partly by their group heading and, subject to that, partly by their internal provisions. But their internal provisions cannot have a wider scope than their governing headings. Rule 9 relating to originating summonses is thus limited to equity. So far, the equity procedure legislation was scattered and the Act No. 49 of 1900 only amended it. In 1901 it was consolidated. The constitution of the Court was that it was to be held by one Judge—called the Chief Judge in Equity or any Judge exercising his (the Chief Judge's) jurisdiction. That is the personnel of the Court. As for the subject matter, it is limited to matters "in equity." Sec. 8 extends the jurisdiction to such common law matters as are incidental to equitable matters. Sec. 10 provides for a declaration of right, but in a "suit" and by "decree" though without the necessity of "granting consequential relief." Sec. 22 provides as of old for suits and also repeats the 1900 addition of originating summons. Instead of the separative heading of "Equity" in the Schedule the separation is effected by the nature of the Act itself. Rule 8, originating summons, is thus restricted to equitable jurisdiction as extended of course by sec. 8. The Act of 1924 does nothing more than extend the equitable power of making declarations to equitable causes in which for any reason no relief can be decreed. It is obviously impossible to accept an argument which would invest the Equity Court—one Judge and no jury—with the power and the duty of deciding, by the informal method of a summons in chambers, ordinary disputes in building contracts, fire and motor insurances or contracts of personal service or charter parties and other shipping contracts, and the innumerable bargains of ordinary life.

In the result, I approve of the judgments of Harvey J. in McDonnell v. Coles[42] and Tooth & Co. v. Coombes[43], and am of opinion that the judgment of Long Innes J. was rendered without jurisdiction. Consequently we also are without jurisdiction to determine the question, which must be left to the Court of common law to decide in the ejectment action.

In this case Long Innes J. assumed jurisdiction on the ground that there had been a breach of the lessors' covenant for quiet enjoyment of the demised premises. In my opinion neither the facts alleged in the statement of claim nor those proved in evidence disclose any breach of the covenant for quiet enjoyment. The respondents intimated to the appellant that it had committed a breach of its obligations under the lease, and required it to remedy the alleged breach, and on the appellant's failure to comply with this notice the respondents commenced an action of ejectment before the proper tribunal for the purpose of determining whether, because of the alleged default of the appellant, they were entitled to recover possession of the premises. They did nothing which could interfere with quiet enjoyment by the appellant if it was entitled to continue such quiet enjoyment under the terms of its lease. But before us it was argued that since the passing of the Administration of Justice Act 1924 the "Supreme Court in Equity," as constituted by the Equity Act 1901, was competent to make declarations with respect to all legal and equitable rights at its unfettered discretion, and that it could therefore entertain a suit for a declaration on behalf of plaintiff lessees that they had not committed a breach of covenant, and to restrain their lessors from taking proceedings to eject them. This very contention was rejected by Harvey C.J. in Eq. in the case of Tooth & Co. v. Coombes[44].

The Imperial statute 9 Geo. IV. c. 83 constituted the Supreme Court of New South Wales a Court of equity in that colony, and conferred on it for that purpose the same powers as the Lord Chancellor had within the realm of England. The Equity Act 1901 directed that the jurisdiction of the Supreme Court in Equity should be exercised in a prescribed manner and by prescribed Judges, and by sec. 10 enacted: "No suit shall be open to objection on the ground that a merely declaratory decree is sought thereby, and the Court may make binding declarations of right without granting consequential relief." This provision had become necessary because by the practice of the Court of Chancery, which was followed in New South Wales, a fixed rule had been established under which declarations were refused where no consequential relief was asked in the suit, and were not made unless such relief was in fact granted. For more than twenty years this section was construed as giving a new remedy where equitable rights already existed, not as enabling the Court to recognize new equitable rights. Then came the Administration of Justice Act 1924, which altered the concluding words of sec. 10 of the Equity Act 1901 so as to make that section stand thus: "No suit shall be open to objection on the ground that a merely declaratory decree is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not." The question is whether this amendment enables the "Court in Equity" to make declarations as to all rights existing at law or in equity, however arising, or whether it merely enables it to make declarations in matters already within its jurisdiction notwithstanding the rule embedded in the old chancery practice that the Court was not at liberty to make declarations where the circumstances were such that it could not give consequential relief. Sec. 10 as it now stands is a reproduction of rule 5 of Order XXV. of the Rules of the Supreme Court in England, but the language is altered so as to be appropriate to proceedings in equity only, not to all proceedings of the Court as in England. We have been referred to several English cases in which the meaning and effect of that rule have been discussed, but they afford little assistance in construing sec. 10 for the circumstances to which the words have to be applied are entirely different in the two countries. In England the power is given to the Court as a whole and in all its jurisdictions, and to construe that power by the practice in chancery would be to put an improper colour on the words of the rule; but in New South Wales the power is given to the "Court in Equity" and the section must be interpreted with respect to the existing jurisdiction of that Court, a jurisdiction practically identical with that of the Court of Chancery. I agree with the view taken by Harvey C.J. in Eq. in Tooth & Co. v. Coombes[45], and I adopt the words in which he expressed that view:—"It is contended, however, that the new addition made to the section by the Act of 1924 has the effect of empowering the Court to make a declaration with respect to any legal right because it says: The Court may make binding declarations of right although consequential relief could not be claimed. The first part of the section clearly lends no support to such an argument, but it is contended that the latter part must be read as an independent provision distinct from the first part of the section and that it empowers the Equity Court to make binding declarations of right, although it has no jurisdiction to grant the consequential relief which some other Court could grant if such a right was established in that other Court. The words are no doubt capable of such construction but in my opinion they are more naturally to be read as being in pari materia with what has gone before. In other words the subject matter of this section is a suit in equity a well known form of procedure, namely, a suit for equitable relief or relating to equitable rights and titles. The whole section has quite an intelligible meaning as so read. In my opinion the reference to the impossibility of giving ancillary relief does not refer to the limitation of the Court's jurisdiction but to the fact that declarations might be asked in cases in which no ancillary relief would be possible in fact, i.e., where a declaration is all the relief that any Court could give. Thus a person with an equitable title under a will or deed which is liable to forfeiture on alienation might ask the Court whether any contemplated dealing would amount to an alienation."

For the reasons I have stated, I think that Long Innes J. should have allowed the demurrer and that we should do so now.

In this case the point in limine is whether the Supreme Court of New South Wales in its equitable jurisdiction had power to entertain the matter. In the opinion I have formed I find it unnecessary to embark on a discussion of the history of the genesis of the New South Wales Supreme Court and the distribution of its powers. I may say, in passing, that from my experience as counsel at the New South Wales bar and afterwards as a Judge of the Supreme Court of the State the separation of the two systems has worked admirably. This separation does not, from my observation in other States, show to any disadvantage by comparison with the judicature system there prevailing. This opinion is, I believe, shared by lawyers in some, at any rate, of these States.

The learned primary Judge concluded that the suit would have been maintainable in chancery before the Judicature Act whatever meaning is attributable to sec. 10 of the Equity Act 1901 and sec. 18 of the Administration of Justice Act 1924. For the purposes of this point the material facts are as follows:—A dispute having arisen between the parties to a lease as to the liability between them for payment of a certain tax, which I shall presently deal with in considering the substance of the case, the defendants served a notice upon the plaintiff company requiring it to remedy the alleged breach of covenant by paying for the current year the tax in question, and stating that by sec. 129 of the Conveyancing Act 1919 the lessors would be entitled to re-enter or forfeit the lease in the event of the plaintiff's failure to comply with the notice within a reasonable period. Subsequently the defendants issued a writ of ejectment in the Supreme Court directed to the plaintiff to recover the land in question from the plaintiff under a power of re-entry contained in the lease for breach of the lessors' covenants therein contained and claimed to recover the land from the plaintiff by reason of non-payment of the tax. The plaintiff company thereupon filed a suit in the equitable jurisdiction of the Supreme Court.

The amended statement of claim, after alleging the lease to the plaintiff company by the defendants' predecessors in title and the covenant for payment of rates, taxes, &c., sets out in full the covenant for quiet enjoyment, which is in the restricted form usually found in leases: "That they" (the lessees) "paying the said rent hereby reserved in the manner aforesaid and performing all and singular the covenants herein contained on their part to be performed shall and may quietly enjoy the said demised premises during the said term without any interruption from or by the said lessors their his or her heirs or assigns or any person or persons lawfully claiming or to claim through under or in trust for him her or them." The statement of claim contains (inter alia) the following prayers: "(1) that it may be declared that the plaintiff is not under the said indenture and memoranda liable to pay any part of the said rate to any person and that the plaintiff has not been guilty of any breach of covenant of the said lease and memoranda and that the defendants are not and never have been entitled to re-enter upon the said land for breach of covenant by the plaintiff; ... (2) (a) that the defendants may be restrained from committing or continuing to commit a breach of the covenant mentioned in par. 2 (a) hereof; (3) that the defendants may be restrained from proceeding with the said action."

I agree with Long Innes J. that the suit may be regarded as one praying for equitable relief in the shape of an injunction to restrain a breach by the lessors of their covenant contained in the lease. It is trite law that a Court of equity has jurisdiction to entertain a suit to restrain a breach of covenant. Under the old practice the jurisdiction was ordinarily exercised only in cases where it was proper to grant an interlocutory injunction to prevent irreparable injury pending the trial of the legal right at law. But to this there was an exception. When the covenant was negative it was the practice to entertain jurisdiction whether risk of irreparable injury could be shown or not. This position is clearly established by the "rule enunciated" by Lord Cairns in Doherty v. Allman[46]:—"My Lords, if there had been a negative covenant, I apprehend, according to well-settled practice, a Court of equity would have had no discretion to exercise. If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury—it is the specific performance, by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves." (See also Elliston v. Reacher[47]; Sharp v. Harrison[48].) The position is the same where the covenant though positive in form is negative in substance, save that in such a case the Court exercises a somewhat larger discretion (Doherty v. Allman[49]; O'Keefe v. Williams[50]).

When a breach of substantially a negative covenant is alleged a Court of equity has jurisdiction to entertain a suit to restrain the breach whatever form the alleged breach may take; and it makes no difference, in my opinion, that the breach takes the form of the institution of an ejectment action, assuming that the institution of such an action does constitute a breach. In the present case the covenant, although to some extent positive in form, is clearly negative in substance. The question, then, is whether there has been what may be claimed to be a breach of the covenant for quiet enjoyment. The terms of the covenant are prefaced with the qualification that the lessee performs the covenants of the lease. It, however, alleges it has done so, and this is an issue which is raised. Moreover, under the words of this covenant the payment of rent is not a condition precedent to the performance of the covenant for quiet enjoyment (Edge v. Boileau[51]).

Sec. 10 of the New South Wales Equity Act 1901, before its amendment by sec. 18 of the Administration of Justice Act 1924, is a re-enactment of sec. 50 of 15 & 16 Vict. c. 86. That section was construed in Sheo Singh Rai v. Mussumut Dakho[52]. Their Lordships adhered to the opinion declared in several decisions of the Board that sec. 15 of the Indian Act VIII. of 1859, relating to declaratory decrees, ought to receive the same construction as sec. 50 of the English Act 15 & 16 Vict. c. 86, which is similarly worded, has received from the English Courts. After referring to a case where it had been laid down that a declaratory decree ought not to be made unless there is a right to some consequential relief which, if asked for, might have been given by the Court, or unless in certain cases a declaration of right is required as a step to relief in some other Court, it was said:—"The question whether a right to some consequential relief exists must therefore arise in all suits in which a declaration of title is sought. It is enough for the present purpose to observe that a right to come to the Court to have a document or act which obstructs the title or enjoyment of property cancelled or set aside or for an injunction against such obstruction would be sufficient to sustain a declaratory decree." This test is satisfied in the case under consideration. The facts in this case show an interference with the title and possession of the land (Dennett v. Atherton[53]; Robinson v. Kilvert[54]; Cohen v. Tannar[55]).

"A breach" of the covenant for quiet enjoyment "may occur either by molestation arising from an action of any kind relating to the title of possession, or by any act by which the lessee is disturbed in the possession of the premises. Of the first sort is an ejectment by a person having a lawful title; or any other suit by which the peaceable occupation of the premises is prevented: thus, a covenant" in a lease, "that the lessee should quietly enjoy the estate discharged from tithes, was held broken by a suit for them, although commenced after the expiration of the term (Lanning v. Lovering4(1603) Cro. Eliz. 916.)" (Woodfall's Landlord and Tenant, 21st ed., p. 865). Whether a writ of ejectment is equivalent to re-entry by the landlord was left open in In re Morrish; Ex parte Hart Dyke[57]. But that case does not in any way impeach or throw doubt on the authority of the judgment of Willes J. in Grimwood v. Moss[58] (see Serjeant v. Nash, Field & Co.[59]). In the last-mentioned case Collins M.R. says[60]:—"The only question is whether the lessor had availed herself of the breach of covenant in a final manner. I think that she had done so, for, except by taking physical possession of the premises, she had done the only thing that she could do to indicate her intention to put an end to the lease." His Lordship, referring to the judgment of Willes J. in Grimwood v. Moss said:—"The learned Judge" (Willes J.) "added, with reference to the case of Jones v. Carter9(1846) [1846] EngR 856; 15 M. & W. 718.:—I entirely agree that the true principle upon which that decision was founded was, that the bringing of the action of ejectment is equivalent to the ancient entry. It is an act unequivocal in the sense that it asserts the right of possession upon every ground that may turn out to be available to the party claiming to re-enter. ... It is quite clear if the landlord, instead of bringing ejectment, had entered, he could have justified in an action of trespass by reference to any act of forfeiture which he could prove." Collins M.R. then proceeds[62]:—"That principle is as much applicable to the procedure of to-day as to that under the Common Law Procedure Act which dispensed with the old allegation of entry and ouster. That being so, it is clear that the writ in the action to recover possession was a conclusive election to treat the act of the lessee in sub-demising the premises without the consent of the lessor as creating a forfeiture. It is true that the rights of the parties were not determined by the issue of the writ, and could not be finally determined until the result of the action was known; but that consideration does not affect the fact of the election of the lessor to treat the lease as at an end, subject to proof that there had been a breach of covenant which entitled her to do so." (See also Commissioners of Works v. Hull[63]; Scarf v. Jardine[64].) In Moore v. Ullcoats Mining Co.[65] Warrington J., as he then was, says with reference to a proviso for re-entry similar to that in this case:—"Is the writ ... a re-entry within the words of the proviso for re-entry or equivalent to a re-entry? I think that it is now settled that under a proviso for re-entry, such as the one in the present case, a writ claiming possession simpliciter, and any further relief which is incidental to a claim for possession, would be equivalent to a re-entry." "The bringing of an ejectment for the forfeiture is equivalent to an entry, and amounts to an election to determine the term from the day on which the plaintiff claims to be entitled to possession" (Cole on Ejectment, p. 408). Such a determination puts an end to the right of possession, both of the tenant himself and of all sub-tenants (Great Western Railway Co. v. Smith[66]). The person who re-enters is remitted to his former estate and all mesne estates are avoided (Bac. Abr., "Conditions," (O) 4; Co. Litt. 202A).

These authorities satisfy me that there is jurisdiction to entertain this suit in the New South Wales Court of Equity, and the question becomes one of convenience and exercise of discretion—whether the State Court should have dealt with it or left the parties to their common law action. As the suit has proceeded to judgment and the facts are before this Court, it would be most inconvenient and unjust to place the burden on the parties of relitigating the same facts in the common law Courts. The result of this will be that a jury will automatically return a verdict by direction. This will, no doubt, be followed by an appeal to the Full Court of the Supreme Court of the State and thence again to a final Court of appeal.

As I understand the majority of the Court think that there is no jurisdiction to entertain this suit, I shall refrain from giving the opinion I have written on the substance of the case.

The Imperial statute 9 Geo. IV. c. 83, secs. 3 and 11, enacted that the Supreme Court of New South Wales should be a Court of Record and should have cognizance of all pleas civil, criminal and mixed as fully and amply as His Majesty's Courts of King's Bench, Common Pleas, and Exchequer, or either of them lawfully had in England, and also that it should be a Court of equity in New South Wales and should have power and authority to administer justice and to do, exercise and perform all such acts, matters and things necessary for the due execution of such equitable jurisdiction as the Lord High Chancellor of Great Britain could or lawfully might within the realm of England, and all such matters and things as could or might be done by the said Lord High Chancellor within the realm of England in the exercise of the common law jurisdiction belonging to him. Originally this jurisdiction was exercised by the Full Court, but in 1840 the statute 4 Vict. No. 22, sec. 20, authorized the appointment of the Chief Justice or one of the puisne Judges to sit and hear without the assistance of the other Judges all causes or matters depending in the Supreme Court in Equity, and, ultimately, it was provided that the jurisdiction of the Supreme Court in Equity should be exercised by the Chief Judge in Equity or other Judge of the Supreme Court of New South Wales (Equity Act 1880, No. 18; Equity Act 1901, No. 24; Supreme Court and Circuit Courts Acts 1900, No. 35, sec. 15; 1912, No. 9, sec. 5). Thus the Supreme Court of New South Wales acquired the jurisdiction of the High Court of Chancery. However, the common law and equitable jurisdictions of the Supreme Court were never exercised in the same proceeding and law and equity were not administered in one or the same cause or matter as under the judicature system of England. The provisions of various Acts passed in England to amend the practice and course of proceedings in the Court of Chancery were adopted in New South Wales. Thus it was enacted that no suit should be open to objection on the ground that a merely declaratory decree is sought thereby and the Court might make binding declarations of right without granting consequential relief (Chancery Procedure Act 1852 (15 & 16 Vict. c. 86), sec. 50; Equity Act 1880, No. 18, sec. 50, re-enacted by Equity Act 1901, sec. 10). So also it was enacted: "In any suit or proceeding in equity wherein it may be necessary to establish any legal title or right as a foundation for relief the Court shall itself determine such title or right without requiring the parties to proceed at law to establish the same and wherever any question now cognizable only at law shall arise in the course of any proceeding the Judge shall have cognizance thereof as completely as if the same had arisen in a Court of law and shall exercise in relation to such title right or question all the powers of the Supreme Court in its common law jurisdiction and no suit in equity shall be open to objection on the ground that the remedy or appropriate remedy is in some other jurisdiction" (Equity Act 1880, No. 18, sec. 4; Equity Act 1901, sec. 8; cf. Chancery Procedure Act 1852, sec. 62, and Chancery Regulation Act 1862, sec. 1). "Decisions upon this section have imposed a limitation upon the apparent generality of its closing words. The section does not make the Court a Court of law but only empowers the Court to decide common law questions incidentally arising in an equity suit. The plaintiff must establish some recognized equitable ground for coming to the Court and then all questions, whether legal or equitable, arising in the suit can be determined" (Rich, Newham and Harvey's Practice in Equity, p. 7). It is too late now to question these decisions even if in our opinion more weight should have been given to the closing words of the section: they have been acted upon for years and must be accepted as the true construction of the section. In 1924, however, the Equity Act of 1901 was amended and, as a result of that amendment, which follows the words of Order XXV., r. 5, of the English Judicature Rules, the Equity Act 1901, sec. 10, reads thus: "No suit shall be open to objection on the ground that a merely declaratory decree is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not" (Equity Act 1901, sec. 10: Administration of Justice Act 1924, sec. 18). So far as procedure is concerned the Equity Act 1901, sec. 22, prescribes that all suits in equity shall be commenced by filing in the office of the Master a statement of the plaintiff's case, to be called the statement of claim, in the forms and manner prescribed. Under the Regulœ Generales (1st August 1902), Part VII., r. 82, the statement of claim shall contain as concisely as may be a narrative of the material facts and circumstances on which the plaintiff relies and shall pray specifically for the relief to which the plaintiff may consider himself entitled and also for general relief.

The jurisdiction of the Supreme Court in its equitable jurisdiction to hear and determine the case now before us depends upon the true effect of the enactments and rules already referred to, and, essentially, in my opinion, upon the proper construction of the Equity Act 1901, sec. 10, as amended in 1924 by the Administration of Justice Act 1924, sec. 18. Now, the amended section is a remedial provision and should receive as liberal a construction as possible. It seems to me that the question is whether the Supreme Court in its equitable jurisdiction has been given a general power to make declaratory orders at the instance of a party interested in the subject matter or whether, as the Chief Judge in Equity, Harvey J., held in Tooth & Co. v. Coombes[67], the power is confined to suits for equitable relief or relating to equitable rights and titles. (See also Furphy v. Nixon[68] and see Schnelle v. Dent[69].) The origins of the jurisdiction of the Court of Chancery are, according to Lord Redesdale, obscure, but its powers and duties became "fixed and acknowledged" (see Mitford on Pleading, 4th ed., pp. 1, 2, 111). When, however, it was said that the Court of Chancery had no jurisdiction to make a declaration of right, what was meant was that it would "not according to its settled practice do so except in a certain way and under certain circumstances"—"that it was not matter proper or convenient for it to adjudicate upon" (Guaranty Trust Co. of New York v. Hannay & Co.[70]). Consequently, when in England the jurisdictions vested in the Courts of common law and chancery were transferred to the High Court of Justice, the validity of a rule—Order XXV., r. 5—was sustained enabling the High Court to entertain what might be called "an action of declarator." It was argued that the decision rests upon two considerations. The first, that the Judicature Act substituted one High Court for the former common law and chancery Courts. Now, as to this, in New South Wales both common law and chancery jurisdiction had always been vested in one Court—the Supreme Court. No doubt those jurisdictions were administered separately, but that they existed in the same organ is beyond dispute. The second, that the Chief Judge or other Judge sitting in equity had an equitable jurisdiction only. But that denies that the Equity Act, sec. 10, as amended in 1924, "creates a new practice which cannot be limited by the old equitable practice"; and that is the very matter in dispute. Unless it does create a new practice, the Supreme Court of New South Wales cannot, apparently, use the convenient modern device provided in Order XXV., r. 5, of the English Judicature Rules. It certainly cannot do so in the common law jurisdiction of the Supreme Court. Actions for declarations were, however, commonplace in its equitable jurisdiction and the jurisdiction to declare rights extended even to legal rights if incidental to some equitable claim. There is no reason in the nature of things why that power should not be extended to declare rights generally (see Russian Commercial and Industrial Bank v. British Bank of Foreign Trade Ltd.[71], especially the speech of Lord Dunedin). For my part I can find no meaning for the words "whether any consequential relief is or could be claimed or not" unless the power be general. The Supreme Court in its equitable jurisdiction might without those words have declared equitable rights or titles and even legal rights if incidental to some equitable claim (Jenner v. Jenner[72]). We have been warned, however, that if the clause were so construed as to give the Supreme Court of New South Wales in its equitable jurisdiction a general power to entertain actions of declarator, juries would be abolished, the construction of any contract or document might be drawn into equity and a revolution would have been accomplished. Personally I do not think much harm would result from such a revolution: it has not been noticeable in England or in the other States which have adopted the English practice. But the real answer to the argument is that the power is one which would be carefully watched and only exercised in appropriate cases by the learned Judges who administer the equitable jurisdiction of the Supreme Court of New South Wales. In my opinion the Supreme Court in its equitable jurisdiction had power to make a declaration defining the rights of the parties in relation to the dispute mentioned in par. 8 of the amended statement of claim. If so, the jurisdiction is limited only by the discretion of the Court. That discretion should be exercised judicially (Hanson v. Radcliffe Urban Council[73]), but I do not think this Court should say at this stage that the Supreme Court ought not to have exercised its power in this suit. Had the learned Judge who heard the suit allowed the question in dispute between the parties to be determined in the ejectment action brought on the common law side of the Court, I should have been content to abide by that determination. The dispute, however, involved a mere point of law which does not require the investigation of any facts. This suit was, I think, on the whole, the most expeditious and the least costly method of settling it. In any event no useful purpose would now be served by setting aside the whole proceedings and leaving the parties to have the dispute settled in the common law action of ejectment—a course which can only cause much extra expense and delay and will probably result in further appeals. In my opinion, this Court should deal with the dispute and give its judgment upon the substance of the matter. But as a majority of the Court is of a contrary opinion it would be idle for me to express any opinion upon the question whether the plaintiff is or is not bound to discharge the rate imposed under the Sydney Harbour Bridge Act 1922.

[1] (1925) 42 N.S.W.W.N. 93.

[2] (1895) 16 N.S.W.L.R. (Eq.) 221.

[3] (1913) 13 S.R. (N.S.W.) 444.

[4] (1925) 42 N.S.W.W.N. 93.

[5] (1923) 23 S.R. (N.S.W.) 299.

[6] (1895) 16 N.S.W.L.R. (Eq.) 221.

[7] (1913) 13 S.R. (N.S.W.) 444.

[8] (1910) 1 K.B. 263.

[9] (1895) 16 N.S.W.L.R. (Eq.) 221.

[10] (1913) 13 S.R. (N.S.W.) 444.

[11] (1882) 20 Ch. D. 190.

[12] (1895) 16 N.S.W.L.R. (Eq.) 221.

[13] (1859) 7 H.L.C., at p. 612.

[14] (1882) 20 Ch. D., at p 196.

[15] (1897) A.C. 615.

[16] (1780) 2 Doug. 477.

[17] [1758] EngR 226; (1758) 2 Burr. 665, at p. 668.

[18] (1924) 1 Ch. 236, at p. 247.

[19] (1926) A.C. 101, at p. 108.

[20] (1784) 1 Bro. C.C. 572.

[21] [1742] EngR 147; (1742) 2 Atk. 483.

[22] (1871) L.R. 7 Ex. 26, at p. 35.

[23] (1912) 2 Ch. 1, at p. 12.

[24] (1925) A.C. 619, at p. 631.

[25] (1872) L.R. 8 Ch., at p. 27.

[26] (1873) L.R. 16 Eq. 433, at p. 440.

[27] (1878) 3 App. Cas. 709.

[28] (1846) 2 Ph. 52, at p. 57.

[29] (1859) 4 DeG. & J. 276, at p. 300.

[30] (1873) L.R. 16 Eq., at p. 440.

[31] (1926) A.C. 108.

[32] (1895) 16 N.S.W.L.R. (Eq.) 221.

[33] (1913) 13 S.R. (N.S.W.) 444.

[34] [1833] EngR 814; (1833) 5 B. & Ad. 584, at p. 588.

[35] (1860) 8 W.R. 658.

[36] (1860) 8 W.R., at p. 659.

[37] (1860) 9 W.R. 243.

[38] [1837] EngR 791; (1837) 2 My. & Cr. 558, at pp. 573-576.

[39] (1811) 18 Ves. 56, at p. 58.

[40] (1837) Sau. & Sc. 615, at p. 622.

[41] [1837] EngR 791; (1837) 2 My & Cr. 558.

[42] (1923) 23 S.R. (N.S.W.) 299.

[43] (1925) 42 N.S.W.W.N. 93.

[44] (1925) 42 N.S.W.W.N. 93.

[45] (1925) 42 N.S.W.W.N., at p. 94.

[46] (1878) 3 App. Cas., at pp. 719-720.

[47] (1908) 2 Ch. 374, at p. 395.

[48] (1922) 1 Ch. 502, at p. 514.

[49] (1878) 3 App. Cas., at p. 730.

[50] [1910] HCA 40; (1910) 11 C.L.R. 171, at pp. 211, 212.

[51] (1885) 16 Q.B.D. 117.

[52] (1878) L.R. 5 Ind. App. 87, at p. 111.

[53] (1872) L.R. 7 Q.B. 316, at p. 326.

[54] (1889) 41 Ch. D. 88, at pp. 96, 97.

[55] (1900) 2 Q.B. 609, at p. 613.

[56] (1603) Cro. Eliz. 916.

[57] (1882) 22 Ch. D. 410, at pp. 425, 427.

[58] (1872) L.R. 7 C.P. 360.

[59] (1903) 2 K.B. 304, at pp. 313, 315.

[60] (1903) 2 K.B., at pp. 310, 311.

[61] [1846] EngR 856; (1846) 15 M. & W. 718.

[62] (1903) 2 K.B., at p. 311.

[63] (1922) 1 K.B. 205, at pp. 208, 209.

[64] (1882) 7 App. Cas. 345, at p. 361.

[65] (1908) 1 Ch. 575, at p. 584.

[66] (1875) 2 Ch. D. 235, at p. 253.

[67] (1925) 42 N.S.W.W.N. 93.

[68] [1925] HCA 34; (1925) 37 C.L.R. 161, per Isaacs J. at p. 173.

[69] [1925] HCA 12; (1925) 35 C.L.R. 494, at p. 524.

[70] (1915) 2 K.B. 536, at pp. 563, 567.

[71] (1921) 2 A.C. 438.

[72] (1866) L.R. 1 Eq. 361, at p. 368.

[73] (1922) 2 Ch. 490, at p. 507.

High Court of Australia

David Jones Ltd v Leventhal [1927] HCA 53; (1927) 40 CLR 357 (8 December 1927)

HIGH COURT OF AUSTRALIA