Clarey v Principal & Council of Women's College [1953] HCA 58; (1953) 90 CLR 170 (11 September 1953)

HIGH COURT OF AUSTRALIA

CLAREY v. PRINCIPAL AND COUNCIL OF THE WOMEN'S COLLEGE [1953] HCA 58; (1953) 90 CLR 170

Landlord and Tenant

High Court of Australia
Williams A.C.J.(1), Webb(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Landlord and Tenant - Recovery of possession of prescribed premises - Conduct &which is a nuisance or annoyance to adjoining occupiers - Part of house let for accommodation of university students - Landlord residing in remainder - Noises late at night - Ordinary and proper user - The Landlord and Tenant Acts 1948 to 1949 (Q.) (12 Geo. VI. No. 31 - 14 Geo. VI. No. 9) ss. 41 (5) (d).

HEARING

Brisbane, 1953, July 27, 28.
Sydney, 1953, September 11. 11:9:1953
APPEAL from the Supreme Court of Queensland.

DECISION

September 11.
THE COURT delivered the following written judgment:-
This is an appeal from an order of the Full Supreme Court of Queensland under the provisions of the Summary Ejectment Act of 1867 (Q.) and The Landlord and Tenant Acts 1948 to 1950 (Q.). The magistrate adjudged that the applicants, the appellants in this Court, were entitled to possession of the land and premises occupied by the Principal and Council of the Women's College within the University of Queensland, the respondents on this appeal, at the corner of Lambert Street and O'Connell Street, Kangaroo Point, Brisbane, and ordered that a warrant should issue to eject the respondents from these premises and to give possession thereof to the appellants. The Supreme Court ordered that the order of the magistrate should be set aside and that any warrant issued in consequence of that order should be rescinded. The only appeal to the Supreme Court from the order of the magistrate is that contained in s. 53 of The Landlord and Tenant Acts, sub-s. 2 of which provides that there shall be an appeal, as to questions of law only, to the Supreme Court from any judgment or order of a court of competent jurisdiction in proceedings under this Part of the Act. The ground on which the magistrate found for the appellants and made the order for recovery of possession was that contained in s. 41(5)(d) of The Landlord and Tenant Acts, that is to say, that the lessee had been guilty of conduct which was a nuisance or annoyance to adjoining or neighbouring occupiers. The particulars given in support of this ground were as follows: "You have permitted or allowed noisy and rowdy behaviour on the subject premises at late hours of the night and early hours of the morning. In spite of repeated warnings and requests the occupiers of the premises walk heavily over bare boards, slam doors, pull furniture about and indulge in loud talking and laughter and generally disturb the peaceful enjoyment of the premises by the Lessors in the late hours of the night and early hours of the morning whereby the Lessors are awakened and/or prevented from sleeping and as a result their health has been affected." The appellants occupy the front portion and some of the students and staff of the Women's College the rear portion of the building. The rear portion was first let to the respondents to provide accommodation for some of its students and staff in 1940. At that time the appellants occupied as part of their portion a large room with a fireplace which formed a sort of buffer between the front and the rear of the building, and helped to prevent noises made by the students being heard in the portion occupied by the appellants. About February 1947 the appellants went to live in Melbourne and let the whole building to the respondents. In 1950 the appellants returned to Brisbane and the respondents at their request gave up possession of that part of the front of the building they now occupy, the respondents continuing as tenants of the rear of the building and of the room with the fireplace. The appellants, soon afterwards, began to request the respondents either to give up possession of the rest of the building or to purchase the whole of the premises or at least to give up possession of the room with the fireplace. The respondents were unable to agree to any of these requests. The correspondence on these subjects that passed between the parties is set out in full in the reasons of the learned Chief Justice of Queensland and need not be repeated. (at p175)

2. The appellants then commenced these proceedings. The magistrate evidently accepted the evidence of the appellants. This evidence proved that the students made a considerable amount of noise at late hours of the night and disturbed the appellants in their sleep and caused them considerable discomfort. But the noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling. They consisted of noises made by such acts as walking about, scraping chairs along the floor, having baths, talking and laughing, and preparing for bed. A landlord who lets a portion of a building for the accommodation of university students can only reasonably expect that such students will keep late hours and in the course of doing so will make such noises. The appellants' evidence does not appear to us to be reasonably capable of proving that the students made an improper use of the rear portion of the building for the purposes for which it was let. Where landlords let adjoining premises to accommodate a number of persons, they cannot complain if those persons move about the demised premises, talk, move chairs, shut doors, have baths, prepare for bed, and do such things at late hours. In Lyttelton Times Co. Ltd. v. Warners Ltd. (1907) AC 476, Lord Loreburn delivering the judgment of the Privy Council said: "If A. lets a plot to B., he may not act so as to frustrate the purpose for which in the contemplation of both parties the land was hired. So also if B. takes a plot from A., he may not act so as to frustrate the purpose for which in the contemplation of both parties the adjoining plot remaining in A.'s hands was destined. The fact that one lets and the other hires does not create any presumption in favour of either in construing an expressed contract. Nor ought it to create a presumption in construing the implied obligations arising out of a contract. When it is a question of what shall be implied from the contract, it is proper to ascertain what in fact was the purpose, or what were the purposes, to which both intended the land to be put, and, having found that, both should be held to all that was implied in this common intention" (1907) AC, at p 481. Of this case Lord Parker (then Parker J.) said in Jones v. Pritchard (1908) 1 Ch 630: "The latter case seems to shew that if a grantor is doing, on land retained by him, only what it was at the time of the grant in the contemplation of the parties that he should do, and is guilty of no negligence or want of reasonable care or precaution, he cannot be liable for nuisance entailed upon the grantee. And, of course, where the grantee is occasioning a nuisance to the grantor by doing on the land granted what it was at the time of the grant in the contemplation of the parties that he should do, and there is no negligence or want of care or precaution, the case is an a fortiori one" (1908) 1 Ch, at p 636. See also Pwllbach Colliery Co. Ltd. v. Woodman (1915) AC 634, at pp 647, 648, 650; Mercantile Investments Ltd. v. Australian Optical Co. Ltd. (1945) SASR 129. There is no evidence that the conduct of the students caused any inconvenience to any adjoining or neighbouring occupier except the appellants. There is evidence to the contrary. The discomfort that the appellants suffer proceeds from the circumstances that they and the students live under the same roof and the building is an old weatherboard building in which noises are very audible. In Ball v. Ray (1873) LR 8 Ch App 467, a case where it was alleged that the noise made by horses constituted a nuisance, Lord Selborne said: "In making out a case of nuisance of this character, there are always two things to be considered, the right of the Plaintiff and the right of the Defendant. If the houses adjoining each other are so built that from the commencement of their existence it is manifest that each adjoining inhabitant was intended to enjoy his own property for the ordinary purposes for which it and all the different parts of it were constructed, then so long as the house is so used there is nothing that can be regarded in law as a nuisance which the other party has a right to prevent. But, on the other hand, if either party turns his house, or any portion of it, to unusual purposes in such a manner as to produce a substantial injury to his neighbour, it appears to me that that is not according to principle or authority a reasonable use of his own property; and his neighbour, shewing substantial injury, is entitled to protection" (1873) LR 8 Ch App, at pp 469-470 . In Pollock on Torts, 15th ed. (1951), p. 311, the learned author says: "The use of a dwelling-house in a street of dwelling-houses, in an ordinary and accustomed manner, is not a nuisance though it may produce more or less noise and inconvenience to a neighbour." (at p176)

3. We are of opinion that the appeal should be dismissed. (at p176)

ORDER

Appeal dismissed with costs.