Bischof v Trotter [1948] HCA 4; (1948) 76 CLR 520 (22 July 1948)

HIGH COURT OF AUSTRALIA

BISCHOF v. TROTTER [1948] HCA 4; (1948) 76 CLR 520

National Security

High Court of Australia
Latham C.J.(1), Rich(1) and Dixon(1) JJ.

CATCHWORDS

National Security - Landlord and tenant - Negotiations for grant of lease - Requiring sum of money other than rent - Uncompleted transaction - National Security (Landlord and Tenant) Regulations (S.R. 1945 No. 97 - 1947 No. 31), reg. 33 (1).

HEARING

Brisbane, 1948, July 22. 22:7:1948
CASE STATED.

DECISION

The judgment of the COURT was delivered by LATHAM C.J.: -
The evidence in this case shows that the defendant said to Brenda Williams, becoming vacant at Hasely Court or Clifton Court, but that there was a little matter of a premium of 68 pounds to pay. Mrs. Williams asked, "Is that rent in advance or do I get anything back for it." Respondent said, "No. You will have to pay that to get possession of the flat. The flat isn't vacant to-day but I can arrange it for you on those terms." Mrs. Williams said, "I don't think we could manage it and if you don't mind let the matter slide." (at p523)

2. Upon the evidence the stipendiary magistrate found: (a) that the respondent at all relevant times was the agent for

the letting of flats known as Clifton Court Flats and
Hasely Court, New Farm.
(b) that on 23rd February 1948 the respondent required one
Brenda Williams to pay to him a sum of money other
than rent, namely 68 pounds, in consideration of a lease to be
granted of a flat at Hasely Court or Clifton Court, Moray
Street, New Farm, being prescribed premises within the
meaning of the Landlord and Tenant Regulations. (at p523)

3. Regulation 33 of those regulations provides a person shall not, whether as principal or agent or in any other capacity, require, give or receive, or offer, promise or agree to give or receive any bonus, premium or sum of money (other than rent), or require the purchase or exchange of any goods or goodwill in consideration of, or in association with the grant, acceptance, assignment or transfer of any lease. (at p523)

4. The stipendiary magistrate took the view which has been supported by the respondent that the evidence showed that 68 pounds was required to be paid in consideration of a proposed or suggested grant of a lease and not in relation to the actual grant of a lease. (at p523)

5. One of the provisions in this regulation is that it shall be an offence to offer a sum of money in consideration of a lease. In the case of the word "offer," it is plain that the regulation contemplates not only the preliminary stages of a transaction which is completed as a transaction with the result that a lease is granted or assigned or transferred, but also an offer being made in a case where a transaction is not completed and there is no grant or assignment or transfer of a lease. (at p523)

6. Similarly, the word "require" should be interpreted as meaning demand as a condition in a transaction which is proposed as a serious transaction. (I say that for the purpose of excluding the case I put in the course of argument of a person who had really nothing to do with the premises). (at p524)

7. If the payment of money other than rent is contemplated as a condition of the grant of a lease, in the sense that it is said or proposed that if such money is paid a lease will be granted, and not otherwise, then, in our opinion, the requirements of the section are satisfied, and an offence has been committed. (at p524)

8. We therefore think that the decision of the magistrate is wrong and should be set aside, and that the case should be remitted to him for the purpose of fixing a penalty. (at p524)

9. The appeal is allowed with costs, the decision of the magistrate set aside, and the case is remitted to the magistrate to fix the penalty. (at p524)

ORDER

Appeal allowed with costs. Decision of magistrate set aside. Case remitted to magistrate to fix penalty.