Burling v Chas Steele & Co Pty Ltd [1948] HCA 3; (1948) 76 CLR 485 (17 June 1948)

HIGH COURT OF AUSTRALIA

BURLING v. CHAS. STEELE & CO. PTY. LTD. [1948] HCA 3; (1948) 76 CLR 485

National Security

High Court of Australia
Latham C.J.(1), Rich(2), Starke(3), Dixon(4) and Williams(5) JJ.

CATCHWORDS

National Security - Regulations - Landlord and tenant - Determination of tenancy - Notice to quit - Premises reasonably required for occupation by landlord - Proceedings for recovery of possession - Jurisdiction - Order by consent for ejectment of tenant - Application by tenant for rescission of order on ground of invalidity of notice to quit - Evidence that only building on land not required for occupation by landlord - Intention to erect new building - Correctness of ground in notice to quit - National Security (Landlord and Tenant) Regulations, regs. 58, 61, 64* (S.R. 1945 No. 97 - 1948 No. 22).

HEARING

Melbourne, 1948, June 16, 17. 17:6:1948
APPEAL from a Court of Petty Sessions of Victoria.

DECISION

The following judgments were delivered: -
LATHAM C.J. This is an appeal by way of order to review from a decision of a Regulations refusing to rescind an order made for the issue of a warrant for possession of premises but including a provision for six months' delay before the execution of the warrant. (at p489)

2. It is contended for the appellant that the magistrate should have made an order for rescission. Regulation 64 gives a very full power to vary or rescind an order for possession. Upon such an application the magistrate may consider and reconsider all relevant facts and circumstances. In this case an order for possession was made by consent. This fact does not, in my opinion, exclude the exercise by a competent court of the power to vary the order, but the fact that an order was made by consent is an important element for consideration when an application for rescission of that order is made. (at p489)

3. Upon the application for rescission it was proved that the landlord company did not require possession of the premises for the purpose of occupying a shed, which was the only building on the land, but that it sought possession of the premises for the purpose of demolishing the shed, putting up a new building and using the building (and presumably the land, in so far as it was not occupied by a building) for the purposes of its business. The ground stated in the notice to quit was that the landlord reasonably required "occupation" of the premises. (at p489)

4. It was argued that upon an application for rescission the whole matter should be considered in the same way in all respects as upon an original application for an order under the regulations. In my opinion this proposition cannot be supported. Upon the application for rescission in this case one very relevant fact was that the tenant had consented to an order, one of the terms of which was that six months' further occupation should be allowed to him. It may for present purposes be conceded, without deciding the matter, that if the case had been contested in the first instance the application would probably have failed on the ground that occupation of the premises was not required by the landlord, as distinct from possession of the premises for the purpose of demolition or reconstruction. But rather than contest the case, the tenant agreed to the order that was made, and thereby he obtained six months' unchallenged occupation. If the case had been fought and the landlord had failed it would have been open to the landlord, with the leave of the court, to issue a fresh notice upon a ground which it would have been able to support by some evidence. The magistrate was entitled to take all these circumstances, in my opinion, into account upon the application for rescission. Mr. Bergere has presented very fully, I think, every argument that could be used in support of the appeal, but in my opinion there is no reason for disturbing the decision of the magistrate, and the order nisi therefore should be discharged and the appeal dismissed. (at p490)

RICH J. Mr. Bergere's very careful argument has not persuaded me to make any order in the case and I agree that the appeal be dismissed. (at p490)

STARKE J. The magistrate was right in refusing to rescind the consent order in the face of the parties' consent and without any fraud or oppression being proved in obtaining that consent. (at p490)

DIXON J. I agree. I only desire to add that if the magistrate himself did not, in exercising his discretion, take into account the grounds open to him under the Act, it would be for this Court in its turn to exercise its discretion; and in the particular circumstances of this case, having regard to the fact that, if the notice to quit was in the first instance erroneous, another notice might have been given on another ground that could have been sustained and having regard to the benefit which the tenant obtained through lapse of time, I think the Court ought to exercise its discretion against rescission. The matter remains in the hands of the magistrate, subject to reg. 64A, and is not out of his control yet. (at p490)

WILLIAMS J. I agree. In the first place, I am of opinion that the magistrate had jurisdiction to make the order consented to by the parties without taking evidence to ascertain whether a ground existed under reg. 58. In the second place, as at present advised, I am of opinion that the evidence given on the application to rescind the consent order proved that the ground taken in the notice to quit, that is ground 58 (5) (g) (ii), was the correct ground. This ground applies whenever the lessor requires the premises, which means the land leased together with the buildings thereon, for his own occupation or for a person associated or connected with him in his trade, profession, calling or occupation. As part of such occupation he is quite entitled to do what he likes with his own land, including reconstructing or demolishing the existing buildings. Ground (l) applies where the landlord requires the premises for reconstruction or demolition with a view to letting or selling them or making some use of them other than his own occupation or the occupation of a person associated or connected with him in his trade, profession, calling or occupation. (at p491)

ORDER

Appeal dismissed with costs. Order nisi discharged.