Barnard v Gorlin [1955] HCA 43; (1955) 95 CLR 35 (11 August 1955)

HIGH COURT OF AUSTRALIA

BARNARD v. GORLIN [1955] HCA 43; (1955) 95 CLR 35

Landlord and Tenant - High Court

High Court of Australia
McTiernan(1), Williams(1), Webb(1), Kitto(1) and Taylor(1) JJ.

CATCHWORDS

Landlord and Tenant - Notice to quit - Premises - Use by tenant - As residence and for sub-letting - Not "used solely as a dwelling house" - Notice - Prohibition order - Applicability - Landlord and Tenant (Amendment) Act 1948-1952 (N.S.W.), s. 62A.*

High Court - Appeal - Competency.

HEARING

Sydney, 1955, August 11. 11:8:1955
APPEAL from the Supreme Court of New South Wales.

DECISION

THE following oral judgment of the COURT was delivered by:
appeal lies as of right. Counsel for the appellant has suggested that, if given an opportunity, he might be able to obtain evidence which would establish a right of appeal; but we have heard his submissions on the substance of the matter, and as we have formed a clear opinion that the appeal, if competent, must fail we shall dispose of the case at once. (at p41)

2. The appellant is the lessee and the respondent is the lessor of a building known as 140 Palmer Street, East Sydney, comprising forty-two rooms. The appellant lives in one room and sub-lets the remainder as separate residential units. Every occupant of a unit uses it exclusively for the purpose of residence. The appellant contracted to sell to a purchaser what he described as the residential business carried on by him at 140 Palmer Street, East Sydney. Being desirous of assigning his lease of the premises to the purchaser of the business, he applied to a District Court judge under s. 62A of the Landlord and Tenant (Amendment) Act 1948-1952 (N.S.W.) for an order that a notice to quit, on the grounds mentioned in par. (c) of that section, should not be given if the proposed assignment should subsequently be made. The section gives power to make such an order in respect only of "prescribed premises not being premises used solely as a dwelling house"; and before the District Court judge an objection was taken by the lessor that the premises in question, which admittedly were prescribed premises, were used solely as a dwelling house. "Dwelling house" is defined by s. 8 (1A) to mean, unless the contrary intention appears, any prescribed premises (including shared accommodation) leased for the purposes of residence; and it includes, inter alia, the premises of any lodging-house or boarding-house. (at p41)

3. The District Court judge overruled the objection because he found as a fact that the appellant carried on a business of letting the rooms other than that in which he himself lived. The carrying on of this business appeared to his Honour to be a user of the premises otherwise than as a dwelling house. (at p42)

4. An appeal to the Full Court of the Supreme Court was upheld. The Full Court followed an earlier decision of its own in a case which appears not to have been brought to the attention of the District Court judge: In re Appeal by Effie Smith (1954) 72 WN (NSW) 84 . That decision placed upon the relevant words of s. 62A the meaning which had been ascribed in Allen v. Connelly (1954) 54 SR (NSW) 229; 71 WN 199 to the words, in s. 62 (9) (b) (iii), "a dwelling house used exclusively as such". In In re Appeal by Effie Smith (1954) 72 WN (NSW) 84 the view of the Full Court was summed up by Roper C.J. in Eq. by saying: "The purpose to be looked at must be the purpose for which the premises are used by the persons who occupy and use them" (1954) 72 WN (NSW), at p 85 . In our opinion this is plainly correct. A person may lease premises as premises in which people may dwell, and the number of lettings and other attendant circumstances may suffice to indicate that he is engaged in a business of letting premises for that purpose. But the premises are nevertheless used solely as a "dwelling house" where that is the sole use to which they are put by their occupants. (at p42)

5. The section is concerned only with the character of the physical acts done on the premises. Use "as" a dwelling house is the criterion selected, and the question whether a person in the position of the appellant is sub-letting portions of the premises by way of carrying on a business of sub-letting is irrelevant. (at p42)

6. The appeal will be dismissed with costs. (at p42)

ORDER

Rule of the Supreme Court varied by inserting therein, after the order that the appeal to that court be allowed, on order discharging the order of the District Court judge referred to in the notice of appeal to that court. Otherwise rule affirmed and appeal to this Court dismissed with costs.