629

THE LANDLORD AND TENANT ACTS, 1948 to 1961

Landlord and Tenant Act of 1948, 12 Geo. 6 No. 31 Amended by Landlord and Tenant Act Amendment Act of 1948, 12 Geo. 6 No. 46 Landlord and Tenant Act Amendment Act of 1949, 13 Geo. 6 No. 31 Landlord and Tenant Acts Amendment Act of 1950, 14 Geo. 6 No.9 Landlord and Tenant Acts Amendment Act of 1954, 3 Eliz. 2 No. 42 Landlord and Tenant Acts Amendment Act of 1957, 6 Eliz. 2 No. 35 Landlord and Tenant Acts Amendment Act of 1961, 10 Eliz. 2 No. 29

An Act Relating to the Determination of Fair Rents of Dwelling-houses and the Recovery of Possession of Premises, and for other purposes [Assented to 1 September 1948J PART I-PRELIMINARY 1. Short title and construction. This Act may be cited as "The Landlord and Tenant Act of 1948." Collective title conferred by Act of 1961. 10 Eliz. 2 No. 29. s. 1. 2. Construction of Act. This Act and every Order in Council and regulation made under this Act shall be read and construed so as not to exceed the legislative power of the State to the intent that where any enactment hereof or provision of any such Order in Council or regulation would but for this section have been construed as being in excess of that power it shall nevertheless be a valid enactment or provision to the extent to which it is not in excess of that power. 3. Parts of Act. This Act is divided into Parts, as follows:­ PART I-PRELIMINARY; PART II-RENT CONTROL- Division I-The Court; Division II-Fair Rents; Division III-General; PART III-RECOVERY OF POSSESSION; PART IV-MISCELLANEOUS. 4. Crown, etc., not bound. This Act shall not bind- (a) The Crown in right of the Commonwealth or of the State; or (b) The Queensland Housing Commission; or (c) Any Local Authority in relation to dwelling-houses provided by that Local Authority as a function of Local Government. 630 LANDLORD AND TENANT Vol. 9

In Town Coullcil of Clwrleville v. DOlleman; Ex parle TOWII Council of Charleville, [1960] Q.W.N. 3 it was held that the letting of part of a dwelling-house owned by a Local Authority to an inhabitant who was not adequately housed was the lawful exercise of a function of local government within the meaning of this subsection.

4A. (1) Certain premises excluded from operation of the Act. The provisions of this Act other than this section shall not apply- (a) To any premises leased for the first time after the first day of December, one thousand nine hundred and fifty-seven; or (b) To any premises leased after the first day of December, one thousand nine hundred and fifty-seven, and which were not leased at any time during the period of three years ending on that date. (2) Certain premises excluded from Part III of the Act. The provisions of Part III of this Act shall not apply to any premises (being premises other than those referred to in subsection one hereof) leased after the first day of December, one thousand nine hundred and fifty-seven, where the parties to that lease have agreed in writing that Part III of this Act shall not apply to such lease. Such an agreement may be made in respect of any lease, but in respect of a particular lease shall be for the purpose of that lease only. (3) Notice to quit. Notwithstanding anything in any Act, rule, custom, or agreement express or implied to the contrary, if a lessee of a dwelling-house (other than a lessee for a fixed term) to whom this section applies duly pays the rent of a dwelling-house leased by him and otherwise performs the conditions of his lease, the lessor shall not be entitled to determine the lease without giving to the lessee at least twenty-eight days previous notice to quit: Provided that nothing herein shall prejudice or affect any lease wherein a longer notice to quit than twenty-eight days is provided for. Inserted by Act of 1957, 6 Eliz. 2 No. 35, s. 2; as amended by Act of 1961, 10 Eliz. 2 No. 29, s. 2. As to the period of a notice to quit, see s. 42. As to contracting out of the Act, generally, see s. 65.

5. Repeal of 10 Gco. 5 No. 31; 2 Geo. 6 No. 26. "The Fair Rents Acts, 1920 to 1938," are hereby repealed.

6. Savings. (1) In this section the term "the Commonwealth Regulations" means the National Security (Landlord and Tenant) Regulations of the Commonwealth, and the term "the Controller" means the Commonwealth Rent Controller appointed under those regulations and any delegate appointed by him to exercise in Queensland any of his powers and functions under those regulations, and the term "expiration," where used with reference to the Commonwealth Regulations, means ended by rcpeal or revocation, or by effluxion of time, or otherwise howsoever. (2) Any determination of the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) made under and in force at (or which would, if those regulations had not expired, have come into force on any date after) the expiration of the Commonwealth LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.4·6 63 [

Regulations shall continue in force under this Act as if it were a determina­ tion made and brought into force hereunder until that fair rent is increased or decreased by a determination under this Act. The provisions of this subsection shall apply as respects a determina­ tion by the Controller- (i) Mentioned in paragraph (a) of subsection four of this section in every case where the right to have the appeal against that determination heard and determined under this Act is abandoned; or (ii) Mentioned in paragraph (c) of subsection four of this section in every case where the right to proceed under this Act as provided in the said paragraph (c) is not duly exercised. (3) The provisions of Part II of this Act relating to the determina­ tion of fair rents and any provisions of this Act incidental to those provisions shall extend to and with respect to all dwelling-houses (and to all goods leased therewith) the subject of determinations under the Commonwealth Regulations continued in force under subsection two of this section. ( 4) (a) Any appeal against a determination by the Controller of the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) under the Commonwealth Regulations com­ menced before, and pending at the expiration of those regulations, may be heard and determined under this Act as if such appeal were an application under this Act for a determination by the Court having jurisdiction to make a determination under this Act in respect of that dwelling-house (or dwelling-house and goods). (b) Any application to the Controller to determine the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) under the Commonwealth Regulations made before, and pending at the expiration of, those regulations may be continued under this Act by the applicant as if it were an application by him for a determination hereunder and may be heard and determined by the Court having jurisdiction to make a determination under this Act of the fair rent of that dwelling-house (or dwelling-house and goods leased therewith). (c) Where an appeal against a determination by the Controller of the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) under the Commonwealth Regulations had not been commenced before the expiration of those regulations, and the period allowed under those regulations for making such appeal had not expired at the expiration thereof, any person who had a right to make that appeal under the Commonwealth Regulations may, within fourteen days after the passing of this Act, apply hereunder for a determination of the fair rent of the dwelling-house (or dwelling-house and goods) concerned by the Court having jurisdiction in the matter under this Act.

(5) For the purposes of subsection four of this section- (a) The Under Secretary, Department of Justice, shall obtain or cause to be obtained from the Controller a list of all applications and appeals specified in subsection four of this section, and all such applications, and all forms, notices, 632 LANDLORD AND TENANT Vol. 9

declarations, and other documents relating to such applica­ tions or appeals which are in the custody or under the control of the Controller; (b) The said Under Secretary shall inform or cause to be informed in writing the registrar of the Court having jurisdiction to determine under this Act the fair rent of any dwelling-house (or dwelling-house and goods leased therewith) the subject of any such application or appeal of that application or appeal and shall furnish or cause to be furnished to that registrar the relevant application and all forms, notices, declarations, and other documents relating to that application or appeal received from the Controller; (c) The said Under Secretary shall make arrangements with the Clerk of every Fair Rents Board under and within the meaning of the Commonwealth Regulations for the transfer to and filing in the office of the registrar of the Court having jurisdiction to determine under this Act the fair rent of any dwelling-house (or dwelling-house and goods leased there­ with) the subject of any such appeal of any notice, form, declaration, or other document relating to that appeal which is in the custody or under the control of that Clerk; (d) The registrar shall notify the applicant or appellant in writing that he is entitled to prosecute the application or appeal by way of an application for a determination by the Court of which he is such registrar (specifying that Court) of the fair rent of the dwelling-house (or dwelling-house and goods) the subject of the application or appeal. The registrar shall in such notice require the applicant or appellant to inform the registrar in writing, within seven days after the date of the notice (or if the registrar is of the opinion that the circumstances are such that a period longer than seven days should be allowed, within such longer period as is specified in the notice), whether he elects to prosecute or to withdraw the application or appeal; (e) If the applicant or appellant fails to inform the registrar as required by the notice within the time specified therein, or duly informs the registrar that he elects to withdraw the appeal or application, the appeal or application shall be deemed to have been abandoned by the applicant or appellant and the registrar shall give to all other persons who according to the records in his possession have, before the expiration of the Commonwealth Regulations, been served with or given notice of the appeal or application a further notice of abandonment as aforesaid; (f) An application or appeal abandoned as aforesaid shall be deemed not to be, or ever to have been, an application for a determination under this Act of the fair rent of the dwelling­ house (or dwelling-house and goods) the subject thereof; (g) If the applicant or appellant duly informs the registrar that he elects to prosecute the application or appeal, the matter shall, subject as hereinafter provided, proceed as if it were LANDLORD AND TENANT ACTS, 1948 TO 1961 s.6 633

an application by him for a determination under this Act of the fair rent of the dwelling-house (or dwelling-house and goods) the subject of the application or appeal. In that case the application for such determination under this Act shall be deemed to be made upon the date upon which the registrar receives such information: Provided that- (i) All notices, forms, declarations, and other documents in writing relating to the application or appeal under the Commonwealth Regulations which have been received by the registrar (excepting notices of such application or appeal given to or served upon other persons who are entitled to be parties to the proceedings before the Court upon the determination) shall, as far as may be, be deemed to relate to the matter of that determination under this Act and shall have force accordingly; (ii) The prescribed notice of such application under this Act shall be served upon all persons other than the applicant or appellant who are entitled thereto, and every such person who desires to appear as a party upon the prosecu­ tion of the application for the determination under this Act shall give notice as prescribed of such appearance by him; (iii) Except where any notice, form, declaration, or other document (not being notices required under paragraph (ii) of this proviso) specified in paragraph (i) of this proviso is, or is to the like effect as, any notice, form, declaration, or other document required under this Act to be given or served by, to, or upon the registrar, or the applicant or appellant, or any other person, in relation to the application under this Act, the registrar. or the appellant or applicant, or that other person, as the case may be, shall serve or give every notice, form, declaration, or other document required in his case under this Act; (iv) Save in so far as is necessary to give effect to the foregoing provisions of this paragraph (g) (including this proviso), those provisions shall be read so as not to limit or prejudice any other provision of this Act relating to any application or appeal specified in subsection four of this section; (h) Until revoked, amended, altered, or otherwise modified under this Act the Rules for regulating the procedure of Fair Rents Boards made by the Governor in Council and published in the Gazette of the twenty-seventh day of November, one thousand nine hundred and forty-three, shall be deemed to be Rules made under this Act for regulating the procedure of Courts having jurisdiction under Part II hereof, and, subject to this Act, such Rules shall apply accordingly. In so applying such Rules the following terms shall, unless the context of such Rules otherwise indicates or requires, have the meanings respectively assigned to them 634 LANDLORD AND TENANT Vol. 9

hereunder III substitution for the meanings assigned to or which those terms bear under the said Rules, that is to say- "Clerk"-Registrar; "Fair Rents Board" or "Board"-A Court having jurisdic­ tion under Part II of this Act; "The Act"-This Act; "The Regulations"-This Act. In printing supplies of any form under the said Rules for the purposes of this Act, the caption thereof and any term appearing in any other printed matter therein may be altered so as to conform to the requirements of this Act and of the said Rules in their application under this Act. Alterations as aforesaid may also be made in any form under the said Rules printed before the passing of this Act and available for the purposes of this Act. (6) Where any proceeding relating to the termination of tenancies of prescribed premises, the recovery of possession of prescribed premises, and the ejectment of lessees from prescribed premises, has been com­ menced before, or is pending at the expiration of the Commonwealth Regulations and is continued after the passing of this Act, the provisions of Part III of this Act shall be observed in relation to such continuance and every such proceeding shall be carried on and prosecuted accordingly but so that this paragraph shall not require any matter or thing done in relation thereto under any provision of the Commonwealth Regulations to be again done under the corresponding provision of this Act. Any matter or thing done in continuation of any such proceeding, or for the purpose of commencing or continuing any like proceeding, during the period from the expiration of the Commonwealth Regulations to the passing of this Act, which, if done after the passing of this Act, would contravene or be not in compliance with any provision of this Act shall be void and of no legal effect whatsoever. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 2. 7. (1) Meaning of terms. In this Act, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say:- "Application"-An application to the Court for a determination under this Act; "Determination"-A determination of the fair rent of any dwelling­ house, or of any dwelling-house together with goods leased therewith, made or continued in force under this Act; "Dwelling-house"-Any premises (including shared accommoda- tion) leased for the purposes of residence and includes- (a) The premises of any lodging-house or boarding-house; and (b) Holiday premises; and (c) Any part of any premises which is leased separately for the purposes of residence, but does not include- (d) Any premises part of which is used as a shop, but this paragraph (d) shall be read so that where part of any premises is used as a shop, every other part of that LANDLORD AND TENANT ACTS, 1948 TO 1961 ss. 6, 7 635

premises which is leased separately for the purposes of residence (including shared accommodation), or for a lodging-house or boarding-house, under a tenancy which does not include that shop shall be and be deemed to be a dwelling-house; or (e) Any licensed premises under and within the meaning of "The Liquor Acts, 1912 to 1947"; or (f) The premises of any registered club or exempted club under and within the meaning of "The Liquor Acts, 1912 to 1947"; or (g) Any premises which are for the time being used, or which are ordinarily used, as a grazing area, farm, orchard, market garden, dairy farm, poultry farm, pig farm, or bee farm: The term includes any part of, and any land or appurtenances leased with or with any part of, any premises which is or are a dwelling-house within the meaning of the foregoing provisions of this definition; "Holiday premises"-Any dwelling-house which- (a) Since the first day of March, one thousand nine hundred and forty-five (or, if not existing on that day, since the day on which it was first leased) has ordinarily been leased for holiday purposes only; and (b) (If existing on the date of the passing of "The Landlord and Tenant Acts Amendment Act of 1957") was not then leased for purposes other than holiday purposes, but does not include any such premises which at any time after the date of the passing of "The Landlord and Tenant Acts Amendment Act of 1957"- (i) Are ordinarily leased for purposes other than holiday purposes; or (ii) Are leased to or occupied by any lessee for a continuous period exceeding three months. "Lease"-Includes every contract, agreement, or arrangement by whatever name called, whether expressed or implied or made orally, in writing, or by deed, and whether made before or after the commencement of "The Landlord and Tenant Acts Amendment Act of 1954"- (a) For the letting or sub-letting of any dwelling-house, whether with the use of furniture or other goods or not and whether with the supply or provision of any linen or other domestic service whatsoever or not; or (b) Whereby for valuable consideration (which consideration for the purposes of this Act shall be deemed to be rent) any person is licensed, authorised, or permitted to occupy or use any dwelling-house or any part thereof for the purpose of residence (otherwise than as a bona fide lodger or boarder), but does not include any lease arising under an attornment clause in a mortgage or in an agreement for the sale and purchase of land; 636 LANDLORD AND TENANT Vol. 9

"Lessor" and "lessee"-The parties to a lease, or their respective successors in title, and include- (a) A mesne lessor and a mesne lessee; (b) A sublessor and sublessee; and (c) In respect to premises which are subject to a mortgage, a mortgagee who enters or has entered into possession of the premises under the mortgage and a person who was the lessee of the premises under the mortgagor immediately prior to the mortgagee entering into possession, respectively; "Local Authority"-Includes Brisbane City Council and any Joint Local Authority; "Minister"-The Attorney-General or other Minister of the Crown for the time being charged with the administration of this Act; "Part"-Part of this Act; "Person"-Includes any body corporate; "Prescribed"-Prescribed by this Act; "Prescribed premises"-Any dwelling-house other than holiday premises; "Rates"-Includes any rates or charges made or levied by any Local Authority or other local governing body; "Registrar"-The registrar of a Fair Rents Court under this Act; "Regulations"-Regulations made under this Act; "Rent"-The actual rent payable under a lease, and includes- (a) The value to the lessor of any covenants, conditions, or other provisions of, or relating to, the lease to be performed by the lessee, other than covenants, conditions and provisions usually entered into by a lessee; and (b) Any rates or taxes payable by a lessee in respect of any dwelling-house, other than excess water rates, and where, in any lease- (c) It is provided that a reduced amount, as rent, shall be accepted by the lessor upon any condition to be performed by the lessee, that reduced amount shall be deemed to be the rent payable under the lease; and (d) Any rebate, discount, allowance, or other reduction is provided for, the amount payable after each such reduction is made shall be deemed to be the rent payable under the lease; "Rules"-Rules made under this Act; "Shared accommodation"-Any part of any dwelling-house leased, whether that lease is made before or after the com­ mencement of "The Landlord and Tenant Acts Amendment Act of 1954," for the purpose of residence where such lease entitles the lessee to use in common with another or others anyone or more of the following amenities, namely­ a bathroom, kitchen, lavatory, laundry, or any other amenity LANDLORD AND TENANT ACfS, 1948 TO 1961 s.7 637

whatsoever necessary to make such part of the dwelling­ house complete for living purposes, and such lease does not entitle the lessee to be served with at least one full meal daily: Provided that such use in common of a laundry only shall not cause an otherwise self-contained unit to be classed as shared accommodation; "Tax"-Includes any tax, whether on land or on income derived from land, imposed by any law of the Commonwealth or of the State; "This Act"-This Act and all Orders in Council, rules, and regulations hereunder. (2) Lessee. Lessor. For the purposes of this Act "lessee" includes a person who remains in possession of premises after the termination of his lease of the premises, and "lessor" has a corresponding meaning: Provided that for the purpose of determining whether or not any dwelling-house is "holiday premises" under and within the meaning of this Act any period before, or after, or partly before and partly after the passing of "The Landlord and Tenant Acts Amendment Act of 1949" during which a lessee of that dwelling-house remains or remained in possession of that dwelling-house after the termination of his lease thereof without the consent of the lessor shall not be taken into account in ascertaining the continuous period for which that dwelling-house was leased to or occupied by that lessee. (3) Rent. Where the lessor of any dwelling-house supplies or provides any service in connection with the premises and a separate charge is made for that service, the amount charged shall for the purposes of this Act be deemed to form part of the rent payable under the lease. (4) The fact that the lessor lives in any dwelling-house (including any shared accommodation) shall not raise a presumption that the lessee is a lodger rather than a tenant. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 3; Act of 1949, 13 Geo. 6 No. 31, s. 2; Act of 1954. 3 Eliz. 2 No. 42, s. 2; Act of 1957. 6 Eliz. 2 No. 35. s. 3; Act of 1961, 10 Eliz. 2 No. 29, s. 3. Acts referred to: Liquor Acts, 1912 to 1965, title LIQUOR. Landlord and Tenant Acts Amendment Act of 1949, not reprinted. Landlord and Tenant Acts Amendment Act of 1954, not reprinted. Landlord and Tenant Acts Amendment Act of 1957, not reprinted. This legislation, as did the National Security (Landlord and Tenant) Regulations. applies only where the relationship of landlord and tenant exists in law: it is not concerned with protecting the possession of persons who have no valid lease as here defined. See the judgment of Herron. J., in Simpson v. Mitchell (1944)' 61 W.N.(N.S.W.) 147. These Acts do not constitute a code regulating the whole of the law applicable where parties have entered into the relationship of landlord and tenant; but they make certain special provisions designed to give an added protection to tenants in a time of housing scarcity. The old law still prevails except to the extent that it has been altered or amended by the particular provisions of these Acts. See Bradley v. Moorhead (1952), 52 S.R.(N.S.W.) 128 at p. 130; 69 W.N.(N.S.W.) 150, at p. lSI. That case is noted also under s. 41 (3). Cf. also Armytage & Jones Pry. Ltd. v. Jones (1952), 69 W.N.(N.S.W.) 209 (surrendered by operation of law). and Marvel Skate Co. Pty. Ltd. v. Bright, Ex parte Reid (1952), 52 S.R.(N.S.W.) 277; 68 W.N.(N.S.W.) 302 (death of party to summary proceedings for recovery of premises). 638 LANDLORD AND TENANT Vol. 9

Dwelling-house-It appears that a dwelling-house occupied by an employee in his capacity as such, and not as a lessee, would not come within the scope of the Act, McCann v. Ansett, [1948] N.Z.L.R. 116; Francis Longmore & Co. Ltd. v. Stedman, [1948] 1 A.L.R. 126. But if in addition to occupation as employee, there is also a leasing or letting to the employee at a rent, the dwelling-house is within the Act. See Warner (H.A.) Pty. Ltd. v. Williams (1946), 73 C.L.R. 421. It is a question of fact whether premises are a dwelling-house, London County Council v. Cannon Brewing Co. Ltd., [1911] 1 K.B. 235. The test is whether the premises possess characteristics ordinarily found in homes, Bakes v. Huckle, [1948] V.L.R. 159. A lessee cannot alter the nature of premises let for a specific purpose by his unilateral act; there must be agreement with the landlord, Wolfe v. Hogan, [1949] I All E.R. 570; Gidden v. Mills, [1925] 2 K.B. 713; [1925] All E.R. Rep. 123; Court v. Robinson; [1951] 1 All E.R. 209. Regard should be had to the dominant or principal use of the premises in determining their character, Mayer v. Smythe (1949), 66 W.N.(N.S.W.) 15; Tucker v. Turner, [1946] V.L.R. 241; Jents v. Hacules Motors Pty. Ltd. (1950), 68 W.N.(N.S.W.) 141. But where part of premises is let for the purpose of residence, the premises comprise a dwelling-house, Thompson v. Easterbrook (195 I), 83 C.L.R. 467. A liter in the case of a caretaker's subsidiary occupation of part of a large commercial building, ibid. For the purposes of residence-In Skinner v. Geary, [1931] 2 K.B. 546; [1931] All E.R. Rep. 302, it was held that the protection given to the tenant under those Acts applied only where his occupation was essentially domestic and as his home. If no particular use was contemplated at the time the lease was granted, regard shollid be had to the lIse to which the premises are in fact put. Where premises are let for a particular purpose, the lessee cannot, by using the premises for another purpose, either take them out of the operation of the Act or bring them within it, Williams v. Perry (1924),40 T.L.R. 539; [1924] All E.R. Rep. 535; Hyman v. Steward (1925), 94 L.J.K.B. 715; [1925] All E.R. Rep. 526. If a dwelling-house is let on terms which admit of its use for some other purpose and it is subsequently used solely for that purpose, then it ceases to be a dweIIing­ house within the meaning of the Act, Giddell v. Mills, [1925] 2 K.B. 713; [1925] All E.R. Rep. 123; Prout v. HUllter, [1924] 2 K.B. 365; [1924] All E.R. Rep. 53. See also Bakes v. Huckle, [1948] V.L.R. 159; Wolfe v. HORan, [1949] 1 All E.R. 570; COllrt v. Rohinson, [1951] 1 All E.R. 209; Dobbs v. Linford, [1952] 2 All E.R. 827. Residence-The meaning of "residence" can vary according to the context and the statute in which it is found, Ex parte Breull; Re Bowie (1880), 16 Ch. D. 484, and in determining what constitutes residence for the purpose of the Landlord and Tenant Act 1948, the general purpose of that Act must be taken into account, in its general meaning "residence" refers to an habitual place of sleeping, eating, and drinking, R. v. North Curry (1925), 4 B. & C. 959. 'There may be occasions when we ought to construe the word 'residence' as meaning the place where a man sleeps, but the word does not necessarily have that meaning", Attenborough v. Thompson (1857),2 H. & N. 559, at p. 563. In Hyman v. Steward, (1925),94 L.J.K.B. 715; [1925] All E.R. Rep. 526, the tenants had gone to live elsewhere but stilI had meals on the premises and slept there on occasions; and it was held that the premises were still a "dwelling-house" for the purpose of the English Rent Restriction Acts. Any part of any residenee--See Wimbush v. Cibulia and Levinski, [1949] 2 All E.R. 432. [1949] 2 K.B. 564, where there were two lettings at different times of rooms in the same house, by the landlord's predecessors in title to the same tenant; quaere whether separate lettings or one letting. See also Cumbes v. Robinson, [1951] 1 All E.R. 661, as to a shop and dwelling-house let together and subsequently let separately to the same tenant under two leases. Flats-Each flat in a block of flats has been held to be a separate dwelling­ house within the normal meaning of that word, Cobbold v. Abraham, [1933] V.L.R. 385; Re Marshall and Scott's Contract, [1938] V.L.R. 98; Ex parte High Standard Constructions Ltd. (1929), 29 S.R.(N.S.W.) 274. "The word signifies a place of abode, and is sometimes used as equivalent to 'house'. The cases to which I have been referred show that one building may contain more than one dwelling; for example, you may have a terrace in which each house is separated laterally from its neighbours and constitutes a separate dwelling. You may also have buildings in which separate dwellings are superimposed one above the other. I think the LANDLORD AND TENANT ACTS, 1948 TO 1961 s.7 639

authorities show that the crucial test is the degree of separation of the parts of the building in question. In my opinion, where one portion of the building is structurally separated from the rest of the building so as to be capable of occupation by a separate family or household it may constitute a separate dwelling", Cobbold v. Abraham, supra, at p. 391. There is only one dwelling-house where there is one letting at one rent of separate parts of one house. Thus two fiats in the same building let together at one rent were held to constitute a single dwelling-house, Rider v. Rollit (1920), 36 T.L.R. 687. Caravan-A caravan on supports let as a place of residence has been held to be a dwelling-house, R. v. Smith and Johnson; Ex parte Loy, [1952] St. R. Qd. 226. See also Langford Property Co. Ltd. v. Goldrich, [1948] 2 All E.R. 439, [1949] 1 KB. 511. Holiday premises-Holiday premises are not "prescribed premises" within the meaning of this Act, and proceedings to recover possession thereof must be taken under the Summary Ejectment Act of 1867, p. 749, post or by writ of possession in the Supreme Court according as to whether the occupant is a tenant whose term has expired or trespasser; see Harle v. Christian (1949), 66 W.N.(N.S.W.) 122; Gibbs v. McCorquodale (1950), 67 W.N.(N.S.W). 169; Castrisos v. Quarterley (1950), 67 W.N.(N.S.W.) 81. Periodic tenancies-These are tenancies which developed at common law whereby the tenant held for a periodic term as from year to year, month to month. or week to week, and the rent was payable for the term, e.g. yearly, or calculated with reference to an aliquot part thereof, Richardson v. Langridge (1811), 4 Taunt. 128, at p. 131. The tenancy from year to year came to be recognized by the courts some time after the Statute of Frauds (29 Car. 2, c. 3) when there was evidence of a yearly holding, e.g. by payment of yearly rates and taxes. See Bloomfield v. Bloomfield (1892), 9 W.N.(N.S.W.) 188; Moore v. Dimond (1929),43 C.L.R. 105. Such a tenancy might also arise where a tenant entered land under a void lease or an agreement for a lease and paid rent, or where he held over with the lessor's consent at the expiration of the term, Morgan v. Harrison [1907], 2 Ch. 137, at p. 143; Dougal v. McCarthy [1893], 1 Q.B. 736; [1891-4] All E.R. Rep. 1216. Effect of payment of rent-Unless it appeared that the parties intended otherwise. a yearly tenancy was implied from the computation of rent on an annual basis although the rent may have been paid by the week or other instalment. See Moore v. Dimond (1929),43 C.L.R. 105; Dockri/l v. Cavanagh (1945), 62 W.N. (N.S.W.) 94, at p. 96; Precious v. Reedie, [1924] 2 KB. 149; [1924] All E.R. Rep. 573; Turner v. York Motors Pty. Ltd. (1951), 85 C.L.R. 55. It has been held that a tenancy from week to week is to be implied from payment of a weekly rental, Commonwealth Life (Amalgamated) Assurance Ltd. v. Anderson (1945), 62 W.N. (N.S.W.) 240. The mere acceptance of rent after a term has expired will not in itself create a tenancy from year to year, Christopher v. Wright, [1949] V.L.R. 145. Although a tenancy may be implied from the acceptance of rent, such an implication may be rebutted by the circumstances, Cashel v. Howe (1950), 67 W.N.(N.S.W.) 209; City of Sydney v. Varvaressos (1950), 68 W.N.(N.S.W.) 52; Marcroft Wagons v. Smith, [1951] 2 All E.R. 271. There may be a monthly tenancy although the rent is paid weekly, Hayes v. Hayes, [1934] St. R. Qd. 303. For an example of a tenancy held to be fortnightly although the rent was paid weekly, see Munro v. Dare; Ex parte Dare, [1934] St. R. Qd. 332. Tenancy at sufferance-This arises where a person who has come into possession by lawful title continues in possession after his title has determined with­ out the assent or dissent of the person entitled, Remon v. City of London Real Property Co., [1921] 1 KB. 49, at p. 58; Natural Gas & Oil Corporation Ltd. v. Byrne (1951), 68 W.N.(N.S.W.) 207. Tenancy at will-This arises where land is let for an indefinite period determinable at the will of either party, whether with or without the necessity of giving any notice, Landale v. Menzies (1909), 9 C.L.R. 89. A tenant at will may not assign or sublet since he has no definite estate. As to tenancy at will under this Act see Smith v. Smith, (1950) 45 Q.J.P.R. 49; Grosset! v. Ireland. [1950] St. R. Qd. 8. See also Burns v. Dennis (1948), 48 S.R.(N.S.W.) 266. Term of lease-The term must have a beginning and ending certain or capable of being ascertained with certainty, Landale v. Menzies (1909), 9 C.L.R. 89. at pp. 100, 101. It may be desultory or non-continuous, Radio Theatres Pty. Ltd. v. City of Coburg, [1947] A.L.R. 603; Burns v. Shire of Woorayl, [1944] V.L.R. 166. 640 LANDLORD AND TENANT Vol. 9

Exclusive possession-It has been held a necessary characteristic of a tenancy that it shall give a right of exclusive possession to the tenant for an ascertainable period of time. However a grant of exclusive possession need not create a tenancy; the circumstances may indicate merely a licence. The question is whether it is intended to create an interest in land, or merely a personal privilege. See Errington v. Errington, [1952] 1 All E.R. 149; Re May (1952), 52 S.R.(N.S.W.) 251; Cobb v. Lanes, [1952] 1 All E.R. 1199; Booker v. Palmer, [1942] 2 All E.R. 674. Reservation of rent is not essential, Francis Longmore & Co. Ltd. v. Stedman, [1948] 1 A.L.R. 126. Servants-A servant occupying premises in return for services rendered may be a tenant unless the occupation is subservient and necessary to the service. See Smith v. Overseers oj Seghill (1875), L.R. 10 Q.B. 422; [1874-80] All E.R. Rep. 373; Marsh v. Estcourt (1889), 24 Q.B. 147; Francis Longmore & Co. Ltd. v. Stedman, [1948] I A.L.R. 126. Share farmers-A share farming agreement may create a lease or may only give a right of occupation not amounting to a lease under this Act, according to its terms. See Bellinger v. Hughes (1911), 11 S.R.(N.S.W.) 419, and Hindmarslz v. Quinn (1914), 17 C.L.R. 622. Caretaker-Where a caretaker occupied part of a large commercial building it was held not to be a letting for the purpose of residence, Thompson v. Easterbrook (1952), 83 C.L.R. 467; and for an occupancy specified "caretaker" held to constitute a tenancy, see Holden v. Nuttall, [1945] V.L.R. 171. Licence-A licence to occupy for valuable consideration is a lease within the meaning of the Act, except in the case of a bona fide lodger or boarder; lodging-houses or boarding-houses may be declared to be "special premises" by the Governor in Council and brought within the Act. See s. 7 A. See Torrisi \. Oliver, [1951] V.L.R. 380. General control and dominion-The question is whether or not the owner has retained "the quality of master ... reserving to himself the general control and dominion over the whole." If he does, the inmate is a mere lodger, Toms v. Luckett (1847), 5 C.B. 23; McCombe v. Smith (1950), 52 W.A.L.R. 12; Torrisi v. Oliver [1951] V.L.R. 380; Honig v. Redfern, [1949] 2 All E.R. 15. The owner need not necessarily reside on the premises, Thompson v. Ward (1871) L.R. 6 c.P. 327. at p. 361; R. v. St. George's Union (1871) L.R. 7 Q.B. 90; Smith v. St. Michael's Cambridge (1860) 3 E. & E. 383; Sauter v. Sangster (1950), 67 W.N. (N.S.W.) 74; Cook v. Humber (1861), 11 C.B. (N.S.) 33. The fact that the lessor has not exercised a right he claims, does not necessarily mean he has not got that right, Kent v. Fittall, [1906] I K.B. 60. The receipt of money as "rent" is some evidence of a tenancy, London and N. W. Rly. Co. Ltd. v. Buckmaster (1875). L.R. 10 Q.B. 444, at p. 451; d. Helman v. Horsham and Worthing Assessment Committee, [1949] 1 All E.R. 776, at p. 784; Harper v. Fairbrother (1951),25 A.L.L 468. Section 7 (4) overrides the presumption accepted in Burnett v. Guice, [1946] A.L.R. 317, that where an owner is living in a house, another occupier is a lodger rather than a tenant. Contractual licence with exclusive possession-See Errington v. Errington, [1952] I All E.R. 149; Re May (1952), 52 S.R.(N.S.W.) 251; Cobb v. Lane, [1952] 1 All E.R. 1199. Where a lessee temporarily yielded up possession to the lessor of demised premises for structural work, it was held that he continued to be a lessee for the purposes of the Landlord and Tenant Act, Goldsworthy v. Calvert, [1953] Q.W.N. 11. Technical terms-Whether or not a tenancy exists depends on the intention of the parties, Kinneil Pty. Ltd. v. Cooke (1949), 66 W.N.(N.S.W.) 213; K.L. Distributors Pty. Ltd. v. Jacob, (1949) Tas. S.R. 123; Adams v. Gillman, [1948] S.A.S.R. 257. The use of technical words such as "lease," "demise," "exclusive lIse," or "licence" is not conclusive, Wells v. Kingston upon Hull (1875), L.R. 10 C.P. 402, 410; Clore v. Theatrical Properties Ltd., [1936] 3 All E.R. 483; Harper v. Fairbrother (1951),25 A.L.I. 468; Glenwood Lumber Co. Ltd. v. Phillips, [1904] A.C. 405; [1904-7] All E.R. Rep. 203; A.-G. v. Geelong Harbour Trust, [1933] V.LR. 244; Birt v. Leichhardt Municipal Council (1951), 18 L.G.R. 78. See also Wynyard Investments Pty. Ltd. v. Metropolitan Water Sewerage and Drainage Board (1953). 19 L.G.R. 26 (N.S.W. Land and Valuation Court). LANDLORD AND TENANT ACTS, 1948 TO 1961 s.7 641

Occupation without rent-A tenancy may exist although there is no covenant to pay, Grossett v. Ireland, [1950] St. R. Qd. 8; Cuttle v. Brandt (1947),64 W.N. (N.S.W.) 96; McKenzie v. McKenzie (1944), 62 W.N.(N.S.W.) 48; Burns v. Dennis (1948), 48 S.R.(N.S.W.) 266. Occupation under family arrangement-Such occupation may amount to a tenancy at will, Doe d. Groves v. Groves (1847), 10 Q.B. 486; Woodhouse v. Hooney (1915), 1 I.R. 296. See also Pargeter v. Pargeter, [1946] 1 All E.R. 570; Bramwell, [1942] 1 All E.R. 137. Occupation under will-This has been held not to be a lease, Elder's Trustee & Executor Co. Ltd. v. Sach, [1944] S.A.S.R. 65. Holding over-In Simms v. Lee (1945), 45 S.R.(N.S.W.) 352, it was held that a person who had been a lessee, and was holding over at the expiration of the lease against the will of the person who had been the lessor, was not a "lessee" within the meaning of the original Commonwealth Regulations; and in so holding the court refused to follow the decision in Fry v. Metzelaar, [1944] A.L.R. 414. But cf. now subsection (2). A tenant holding over (subsection (2» has been held to have no interest which he may assign or sublet, Hart v. McEwan, [1947] St. R. Qd. 175. See also Fink v. Melntosh, [1946] V.L.R. 290; Moore v. Greenacre (1946), 63 W.N. (N.S.W.) 265; Price v. Mayman, [1948] S.A.S.R. 241; Richardson v. Landecker (1950), 50 S.R.(N.S.W.) 250; McTiernan v. Wilson, [1944] St. R. Qd. 202. As to tenure of deserted wife, see notes to s. 61. A lessor's covenant to insure against fire and restore fire damage in a lease for a term has been held not to bind the lessor where the lessee is holding over as a weekly tenant after the expiry of the term, Fe/ser v. Walker (1953), 53 S.R. (N.S.w.) 155. Subsection (2)-Subsection (2) adds to the meaning of "lessor" and "lessee" and does not cut down the definition in subsection (1), Laake v. Parbury H enty & lO. Pty. Ltd. [1950] V.L.R. 94. A lessee holding over becomes a statutory tenant under a statutory lease containing such terms and conditions of the contractual lease as are applicable. See Gargaro V. Moore, [1948] V.L.R. 365; Taylor v. Smallwood, [1949] St. R. Qd. 80; Ford V. Newton, [1949] St. R. Qd. 119; Christopher V. Wrh?ht [1949] V.L.R. 145; Murray, Bull & Co. Ltd. V. Murray [1952] 2 All E.R. 1079; Ettelson V. Caldwell, [1946] V.L.R. 262; Fink V. Melntosh, [1946] V.L.R. 290; Hart v. McEwan, [1947] St. R. Qd. 175. Person who remains in possession-This phrase includes a lessee in receipt of rents and profits although not in actual occupation, Del'on Buildings Pty. Ltd. v. Opcra HOllse Investments Ltd., [19521 V.L.R. 436. The lessee's right to remain in possession after determination of his common law tenancy is a personal right which cannot be assigned, Price V. Mayman, [1948] S.A.S.R. 241; Keel'cs v. Dean, [19241 1 K.B. 685; [1923] All E.R. Rep. 12; Davies V. Bristow, [1920] 3 K.B. 428; [1920] All E.R. Rep. 509; Remon V. City of London Property Co., [1921] 1 K.B. 49. The lessee's contractual rights under the tenancy continue until an order for possession is made. Dikstein V. Kanevsky, [1947] V.L.R. 216. See also Page V. Baumgarten (1949), 67 W.N.(N.S.W.) 27. The settled rule that where a tenant enters into a contract for' the purchase of the leasehold reversion such contract does not operate of itself as a surrender of the tenancy is applicable where the tenant who buys the leasehold reversion is a statutory tenant and not a contractual tenant, Nightingale V. Courtney, [1954] 1 All E.R. 362. Successors in title-For recovery of possession by an assignee of a reversionary interest from a tenant holding on a monthly tenancy on the expiry of a fixed term, see Stewart v. Goldman & Co. Pty. Ltd. (1947). 64 W.N.(N.S.W.) 155. See also Cook V. Evans (1948), 65 W.N.(N.S.W.) 289; Hollingsworth V. Lee, [1949] V.L.R. 140; Heath V. McGrath, [1951] V.L.R. 496. Proceedings may be instituted by the successors in title of a landlord who has given notice, Anderson, Hodgson and Lithgow V. Vecht, [1946] A.L.R. 452; Goddard V. Precians (1948), 66 W.N. (N.S.W.) 166. See also Towill V. Bailer, [1949] V.L.R. 248; Smith and Smith v. Smith (1950), 45 Q.J.P.R. 49. Death of lessee-As to the rights of a person (not being a lodger or boarder' who resided with the lessee immediately prior to his death, see S. 61. A periodic tenancy or lease for a fixed term, if not disposed of by will, vests on the lessee's death in the Public Curator until a grant is made. Public Curator Acts 1915 to 1957, S. 30, title TRUSTEES AND EXECUTORS, See Roos V. Pilgrim (1951),51 S.R.(N.S.W.) 174; Commonwealth Life (Amalgamated) 21 642 LANDLORD AND TENANT Vol. 9

Assurance Ltd. v. Anderson (1945), 62 W.N.(N.S.W.) 240; Ackland v. Pring (1841), 2 M. & Gr. 937; Doe d. Shore v. Porter (1789), 3 T.R. 13; James v. Dean (1808), 11 Yes. 383, at p. 393; Doe d. Hull v. Wood (1845), 14 M. & W. 682; The Daily Pty. Ltd. v. White (1946), 63 W.N.(N.S.W.) 262. If there is a will, the Public Curator may, if he thinks fit, until grant, exercise with respect to the estate of the deceased person all such powers and authorities and do all such acts and things as he would have or could exercise or do if the deceased had died intestate and the Public Curator had obtained an order to administer, Public Curator Acts, 1915 to 1957, s. 33. As to the extent of the powers of the Public Curator, d. Andrews v. Hogan, [1952] A.L.R. 601; Moodie v. Hosegood [1951] 2 All E.R. 582, [1952] A.C. 61; Long (Fred) & Sons v. Burgess, [1949] 2 All E.R. 484, [1950] 1 K.B. 115; Harrowby v. Snelson, [1951] 1 All E.R. 140; Egerton v. Rutter, [1951] 1 K.B. 472; Wilbraham v. Colclough, [1952] 1 All E.R. 979; Ex parte Public Trustee; Re Birch (1951), 51 S.R.(N.S.W.) 345. The executor of a deceased tenant derives his title as from the death of the testator, Woolley v. Clark (1822), 5 B. & Ald. 744; Johnson v. Warwick (1856), 17 C.B. 516; lngall v. Moran, [1944] 1 All E.R. 97, [1944] 1 K.B. 160, but an administrator's title dates from the grant, Woolley v. Clark, supra; Morgan v. Thomas (1853), 22 L.J. (Ex.) 152. However, the vesting in the administrator relates back for most purposes to the intestate's death, lngall v. Moran, supra; Hilton v. Sutton Sleam Laundry, [1945] 2 All E.R. 525, (1946) K.B. 65. Vacant land-Although the term "premises" includes both buildings and the land occupied with them, it does not include vacant land. (McNamara v. Quinn [1947] V.L.R. 123) or unimproved land. (Re Mayne, [1947] Q.W.N. 40). See also Natural Gas & Oil Corporation Ltd. (in liquidation) v. Byrne & Boyle (1951) 68 W.N.(N.S.W.) 207; Turner v. York Motors Pty. Ltd. (1951) A.L.R. (C.N.) 1055. As to the onus of proving that premises are not prescribed premises as a defence to a prosecution for an offence against the Act, see McLachlan v. Rendall, [1952] V.L.R. 501. Any part of any premises--The definition merely establishes that part of a building may constitute prescribed premises, Dufjy v. K-Dee Ply. Ltd. (1954),71 W.N.(N.S.W.) 181. Cf. Cillchowska v. Tottenham Borough COllncil, [1954] 1 All E.R. 408. Shared accommodation-"Dwelling-house" is defined to include shared accom­ modation. Upon any variation in arrangement of shared accommodation after a determination, a further determination may be applied for and made not­ withstanding the provisions of s. 23 (s. 24), see Olifje v. Ryan, [1949] V.L.R. 314. For English decisions on the English Rent Restriction Acts which apply to "separate dwelling-houses," see Kenyon v. Walker, [1946] 2 All E.R. 595; Cole v. Harris, [1945] 2 All E.R. 146, [1945] K.B. 474; !veale v. Del SOlo, [1945] 1 All E.R. 191, (1945) K.B. 144; Winters v. Dance, [1948] W.N. 317; Llewellyn v. Harrison, [1948] W.N. 231; McComber v. Smith (1950), 52 W.A.L.R. 12. But see Parker v. Richards, [1954] St. R. Qd. 325.

7 A. Power to determine fair rents in relation to special premises. ( 1 ) The Governor in Council may from time to time by Order in Council- (a) Declare any premises which he considers are used as lodging­ houses or boarding-houses to be "special premises" for the purposes of this Act; (b) Revoke, amend, or otherwise modify any such Order in Council. While any premises remain so declared the provisions of this section shall apply with respect to those premises accordingly. (2) Every contract, agreement, or arrangement by whatever name called, whether expressed or implied or made orally, in writing, or by deed, whereby for valuable consideration any person is licensed, authorised, or permitted to occupy or use any special premises or any part thereof for any purpose, whether exclusively or not, whether as a boarder or lodger or otherwise, and whether or not any services are LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.7·8 643 provided for or supplied to that person in relation to such occupation or use, shall be deemed from the declaration of the premises to be special premises or from the making of the said contract, agreement, or arrange­ ment (whichever last happens) to be a lease within the meaning of this Act of the premises or the part thereof as aforesaid, and the consideration payable (including any consideration payable for any services provided or supplied as aforesaid) shall be deemed to be rent, and the provisions of this Act (other than sections forty-two and fifty-one) shall, so far as applicable, apply accordingly subject to the modifications that- (a) Subsection three of section forty-one of this Act shall be read and construed as if for the words "for a period determined in accordance with the next succeeding section" there were substituted the words "for a period of not less than seven days"; (b) Subsection five of section forty-one shall be read and construed as if for paragraph (d) thereof there were sub­ stituted the following paragraph:- "( d) (i) That the conduct of the lessee is a nuisance or annoyance to any other occupant or occupants of the premises or of the building in which the premises are situated or tends to bring the premises or building as aforesaid into disrepute; or (ii) That the premises are reasonably required by the lessor for occupation by himself or by some person who ordinarily resides with and is wholly or partly dependent upon him;". Inserted by Act of 1954, 3 Eliz. 2 No. 42, s. 3. See Williams v. Hansen (1957), 74 W.N.(N.S.W.) 253.

PART II-RENT CONTROL DIVISION I-THE COURT 8. (1) Fair Rents Court. Subject as hereinafter in this Part provided, for the purposes of determinations and applications under this Part the term "Court" means a court of petty sessions for the district within which (or within twenty miles of the boundary of which) the premises the subject of the determination or application are situated, sitting as a Fair Rents Court. (2) Constitution of the Court. The Court shall be constituted by a stipendiary magistrate or acting stipendiary magistrate sitting alone except in the following cases, that is to say:- (i) Where the Governor in Council is of the opinion that this Part can be better or more effectively administered in any petty sessions district or group of two or more such districts by the appointment of a particular stipendiary magistrate-. acting stipendiary magistrate, or justice of the peace qualified for appointment as a stipendiary magistrate to constitute the Court, the Governor in Council may, by Order in Council, published in the Gazette, make such appointment, and while such appointment remains in force the Court for that district or for any district comprised in that group of districts shall be constituted by the person so appointed; (ii) Where there is no stipendiary magistrate or acting stipendiary magistrate available to constitute the Court at any place appointed for holding courts of petty sessions, the Governor 644 LANDLORD AND TENANT Vol. 9

in Council may, by Order in Council published in the Gazette, appoint a justice or justices of the peace to constitute the Court for that place, and while such appointment remains in force the justice or justices so appointed sitting in petty sessions may constitute the Court for that place. (3) Two or more Courts may sit coucurreutly at same place. Two or more Courts may sit concurrently at the same place for the more speedy disposal of business, and for the purpose of giving effect to the provisions of this subsection as respects any petty sessions district for which the Court is to be constituted by a person appointed under paragraph (i) of subsection two of this section, two or more concurrent appointments may be made under that paragraph. ( 4) Court to be a Court of Record. The Court shall be a Court of Record. See R. v. Smith and Perda, [1952] Q.W.N. 37. Courts of Petty Sessions are now Magistrates Courts, Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. 9. Registrar. (1) The clerk of petty sessions or acting clerk of petty sessions at every place appointed for holding courts of petty sessions shall, by virtue of his office as such, be the registrar of the Court for that place at all times during which a registrar appointed under subsection two of this section is not in office. (2) The Governor in Council may from time to time appoint a person other than the clerk of petty sessions at any place to be the registrar of the Court for that place. Notice of every such appointment shall be published in the Gazette. (3) Inspection of records of Local Authorities. The clerk or other officer having custody of the books or other records relating to the valua­ tions, rates, and other charges of a Local Authority shall allow the registrar to inspect and take copies of or extracts from such books and records, and shall not be entitled to charge any fee in respect of such inspection, copies, or extracts. The clerk of petty sessions is now the clerk of the Magistrates Court, Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. 10. Rules. (1) The Governor in Council may, from time to time, by Order in Council published in the Gazette, make all such rules as may be deemed necessary or convenient for regulating the procedure and practice of the Court and may from time to time in like manner revoke, amend, alter, add to, or otherwise modify any such rules. Without limiting the generality of the aforegoing (including the power to prescribe by the rules forms for the purposes of this Act), the rules may require the making of declarations under the "Oaths Acts, 1867 to 1924," for the purposes of this Act, prescribe the matters and things under this Act with respect to which such declarations are required to be made, and specify the information required to be contained in such declarations (it being hereby declared that the rules could always require the making of such declarations, prescribe such matters and things, and specify such information) . Any person who for the purposes of this Act furnishes in any form prescribed by the rules any information which is false or misleading in any particular shall be guilty of an offence against this Act. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.8-12 645

(2) Subject to this Act and to the rules made under subsection one of this section, the Court shall have and exercise all the ordinary powers of justices of the peace in petty sessions, and the practice and procedure of the Court shall, so far as is practicable, be regulated by "The Justices Acts, 1886 to 1948." As amended by Act of 1954, 3 Eliz. 2 No. 42, s. 4. Acts referred to: Oaths Acts, 1867 to 1960, title OATHS. Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, p. 105. For rules, see p. 701, post. 11. Jurisdiction of the Conrt. The jurisdiction of the Court shall be exclusive and every determination of the Court fixing the fair rent of any dwelling-house shall be final and conclusive and without appeal and no writ of prohibition or certiorari shall lie in respect thereof. In R. v. Will and Toon; Ex parte Visona, [1960] Qd. R. 123 prohibition was granted against lessees and a stipendiary magistrate who had purported to make a fair rents determination without hearing the owners. This section cannot shield a decision made in breach of that rule of natural justice which gives an affected party the right of being heard. See also R. v. Metropolitan Fair Rents Board; Ex parte Canestra, [1961] V.R. 89. See Ex parte Kolotex Pty. Limited; Re Permanent Trustee Company of N.S.W. Limited, [1961] N.S.W.R. 62. Compare R. v. Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd. (1947). 75 C.L.R. 361; Colonial Bank of Australasia v. Willan (1874), L.R. 5 P.c. 417; R. v. Wood (1855), 5 E. & B. 49; Evans v. Donaldson (1909), 9 c.L.R. 140; R. v. Cheltenham Commissioners [1941] 1 Q.B. 467; R. v. Gillyard (1848), 12 Q.B. 572. Prohibition lies before a determination has been made, Belmore Property Co. (Pty.) Ltd. v. Allen (1950), 80 C.L.R. 191. Certiorari is available against the decision of an English Furnished Houses Rent Tribunal in certain circumstances, R. v. Furnished HOllses Rent Tribunal for Paddington, [1947] 1 All E.R. 448. 12. Appearances before Fair Rents Court. ( 1) Any person who is a party to proceedings under this Part or who may be affected by the result of any such proceedings may be represented by counsel, solicitor, or an agent who may examine witnesses and address the Court on that person's behalf. (2) (a) The fees or other remuneration which counsel, solicitor, or an agent may be allowed by the Court to charge and receive for or in respect of any matter or thing done by him in relation to proceedings under this Part, and the maximum amount of such fees or other remunera­ tion, may be prescribed. (b) It shall be unlawful for counsel, solicitor, or an agent to demand or receive any sum by way of a fee or remuneration for or in respect of any matter or thing done by him in relation to proceedings instituted under this Part unless that sum has been allowed by the Court. (c) The Court shall not allow- (i) A sum for any fee or other remuneration in excess of the prescribed maximum, if any; or (ii) (Where the regulations prescribe that fees or other remunera­ tion shall not be charged or received by counsel, solicitor, or an agent except for or in relation to the matters and things set out in the regulations) a sum by way of a fee or other remuneration for any matter or thing not provided for in the regulations. 646 LANDWRD AND TENANT Vol. 9

(3) Any counsel, solicitor, or agent who unlawfully demands or receives any sum by way of a fee or remuneration for or in respect of any matter or thing done by him in relation to proceedings instituted under this Part shall be guilty of an offence against this Act. (4) Any such sum unlawfully received by counsel, solicitor, or an agent shall be recoverable in any court of competent jurisdiction as a debt from him by the person who made the payment, but the provisions of this subsection shall not affect his liability to punishment for an offence under subsection three of this section. (5) Notwithstanding the foregoing provisions of this section, a sum may be received by a solicitor or agent for the purpose of defraying any fee or other remuneration to which this section applies. A solicitor or agent receiving payment of such sum shall, in respect of that sum, be and be deemed to be a trustee under and within the meaning of "The Trust Accounts Act of 1923" as amended by "The Trust Accounts Act Amendment Act of 1925," and the purposes for which that sum shall be deemed to have been paid to him as such trustee shall be the payment thereout of the fees or other remuneration, if any, allowed by the Court and, subject to such payment, the repayment thereof. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 4. Act referred to: Trust Accounts Acts, 1923 to 1959, title TRUSTEES AND EXECUTORS.

DIVISION II-FAIR RENTS 13. Pegging of rents. (1) Notwithstanding any term, condition, or covenant in any lease in force at any time after the passing of this Act the rent payable by the lessee of any dwelling-house (or of any dwelling­ house together with goods) in respect of any period after the passing of this Act shall, unless the rent is fixed by a determination of the Court under this Part of this Act, not exceed the following rent, that is to say:- (i) If the dwelling-house was leased at the date upon which the National Security (Landlord and Tenant) Regulations of the Commonwealth ceased to be in force, the rent shall not exceed the rent lawfully payable in respect thereof under those regulations immediately prior to that date (including the rent of any goods then leased therewith and the charge for any service then provided in connection with the lease); or (ii) If the dwelling-house was not leased at the date upon which the National Security (Landlord and Tenant) Regulations of the Commonwealth ceased to be in force, the rent shall not exceed the rent lawfully payable in respect thereof under the lease whereby the dwelling-house shall be or shall have been first let after that date (including the rent of any goods then leased therewith and the charge for any service then provided in connection with that lease). (2) Until any rent fixed by virtue of subsection one of this section is increased or decreased by a determination, the rent so fixed shall be the fair rent of the dwelling-house (or of the dwelling-house together with goods leased therewith) in respect of which it is so fixed, notwithstanding any alterations, additions, repairs, or renovations to the dwelling-house (whether structural or otherwise) or any change in ownership or tenancy LANDLORD AND TENANT ACfS, 1948 TO 1961 ss.12·14 647 of the dwelling-house, (or, as the case may be, of the dwelling-house and the goods leased therewith), or in the nature or value of the services supplied by the lessor or in the goods leased with the dwelling-house. (3) Nothing in this section shall affect the operation of any deter­ mination. ( 4) Where the rent of any dwelling-house (or of any dwelling-house together with goods leased therewith) is fixed by virtue of this section, the lessee may, by notice in writing given to the lessor, require him to furnish to the lessee a statement in writing as to what is the rent so fixed as afore­ said. If the lessor fails within fourteen days to furnish a statement as afore­ said he shall be guilty of an offence and liable to a penalty of not more than forty dollars, and if the lessor furnishes a statement as aforesaid which is false in any material particular, he shall be guilty of an offence and liable to a penalty of not more than one hundred dollars. Where any lessor is a body (whether corporate or unincorporate) any statement which that lessor is required to furnish under this subsection shall be furnished by some officer or member of the body having knowledge of the facts. Decimal currency references substituted pursuant to section 7 of Decimal Currency Act of 1965. For examples of the operation of this section, see Oberman v. Helbraun, [1950] V.L.R. 55; 57 A.L.R. 187 (prescribed premises let unfurnished on 31 December 1940, at 17s. 6d. a week; let furnished to another tenant in March 1947, at £2 12s. 6d.; held, by Gavan Duffy, J., that the fair rent of the premises, though furnished, was the rent payable on 31 December 1940); and City of Geelong v. Tail (No.2), [1950] V.L.R. 285; 57 A.L.R. 681, where the Full Court, reviewing a decision of Dean, J., held that a lease of fifty years executed in 1930 which provided for an increased rent after eighteen years came within the corresponding section of the Victorian Act. Cf. In the Appeal of Ellis (1950), 68 W.N.(N.S.w.) 90. See also Davies v. O'Sullivan (No.2), [1949] S.A.S.R. 208; Gogel v. Lambie; [1954] V.L.R. 83. A lessee was held entitled to the renewal of a lease in accordance with an option only at the maximum rental payable under the National Security (Landlord and Tenant) Regulations in Penfolds Wines Ply. Ltd. v. Cohen (1946), 47 S.R.(N.S.W.) 195. As to the service of the notice in subsection (4) see rule 21, p. 705, post.

14. Application to determine rent. (1) Subject to this Part an applica­ tion for a determination may be made to the Court from time to time, by- (a) The lessor; or (b) A lessee who has paid, or who has offered (either to the lessor personally or to the person to whom the rent is ordinarily paid) the money payable for, all rent due and payable under the lease up to a date not earlier than fourteen days before the date of the application, of any dwelling-house (or of any dwelling-house together with goods leased therewith). (2) The application shall be made to the registrar in the form prescribed by the rules. (3) The applicant shall have the carriage of the proceedings upon the application before the Court. 648 LANDLORD AND TENANT Vol. 9

(4) Each of the following persons (including that one of them who is the applicant) shall be entitled to be a party to the proceedings before the Court upon an application under this section for a determination in respect of a dwelling-house (or of a dwelling-house together with goods leased therewith), namely:- (i) The lessor; (ii) The lessee; (iii) (Where the applicant is a mesne lessor, a mesne lessee, sub­ lessor, or sublessee) the superior lessor of the applicant; (iv) (Where a superior lessor who is entitled to be a party to the proceedings under paragraph (iii) of this subsection is him­ self a lessee, a mesne lessee, or sublessee) his superior lessor; (v) (Where the dwelling-house is the subject of any mortgage) the mortgagee under that mortgage, and every such person other than the applicant shall be entitled to notice of the application unless service upon him of such notice is dispensed with under the rules.

(5) When Court may authorise entry and inspection. (a) The Court may upon the application of any person who is entitled under this Part to make, and who has made or who satisfies the Court that he intends to make, an application for a determination of the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) or who is entitled to be a party to the proceedings upon any such application make an order authorising the applicant, or any person named in the order, or both the applicant and such person to enter upon that dwelling-house for the purpose of inspecting, or valuing, or inspecting and valuing the dwelling-house (or dwelling-house and goods). (b) Any person who, upon production to him of an order under this subsection, prevents or obstructs or attempts to prevent or obstruct the entry upon a dwelling-house or the inspection or valuing of a dwelIing­ house (or dwelling-house and goods leased therewith) by the person or persons authorised by that order to make such entry, or inspection, or valuation shall be guilty of an offence against this Act. As to applications, see rules 3, 4, 8, 23, 24, post. For power of the court to determine fair rents of its own motion, see s. 20A. Rent becomes payable on the due date fixed for payment. Where, therefore, rent is payable in advance, it must have been paid even though the last week or month for which payment is due extends into the fourteen days before the application, Innes v. Arundel (1928), 22 Q.J.P.R. 83. Where a lessor applies to a Fair Rents Court for a determination of the rent, the notice of application, if not signed by the lessor himself, must be such as to make it clear that the application is that of the lessor and that the notice is executed by his agent as such, who must be duly authorized. See Sandhurst and Northern District Trustees Executors & Agency Co. Ltd. v. Auldridge, [1952] V.L.R. 488; [1952] A.L.R. 900. On the position of a mortgagor who has attorned tenant to the mortgagee, cf. Portman Building Society v. Young, [1951] 1 All E.R. 191; [1951] 2 T.L.R. 369. A deserted wife has been held not to be a tenant or her husband's agent for the purpose of applying for a reduction in rent, R. v. Twickenham Rent Tribunal, [1953] 2 All E.R. 734. Notwithstanding that this legislation makes no provision for the withdrawal of an application once it is made, semble where the parties have come to an agreement concerning the rent the application may be withdrawn at any time LANDLORD AND TENANT ACTS, 1948 TO 1961 ss. 14, 15 649 before the court pronounces its decision. Cf. R. v. Hampstead and St. Pancras Rent Tribunal; Ex parte Goodman, [1951] 1 All E.R. 170. Contrast Johnstone Shire Council v. Wilson & Whitehouse, [1938] St. R. Qd. 315; 32 Q.J.P.R. 151. As to the exercise of the discretion to adjourn proceedings by a Fair Rents Board, see Ex parte Jospe; Re Radovsky (1957), 74 W.N.(N.S.W.) 156. As to applications under subsection (5), see rule 22, p. 705, post. 15. Hearing and determination of application. ( 1) The Court shall hear the application for a determination and determine the fair rent of the dwelling-house. (2) (a) On the hearing of an application to determine the fair rent of a dwelling-house together with goods leased therewith the Court shall determine the fair rent of that dwelling-house irrespective of the goods, and may also, in its discretion, determine the fair rent of the goods. (b) This Part of this Act shall apply and extend in relation to dwelling-houses together with goods leased therewith and any reference in this Part to a dwelling-house shall, so far as applicable, include a reference to goods leased therewith. (3) The Court may inspect any dwelling-house (together with goods, if any, leased therewith) in connection with the determination of the fair rent thereof. ( 4) The Court shall not allow costs: Provided that this subsection shall not limit or restrict the power of the Court under this Part to allow counsel, solicitor, or an agent to charge and receive from his principal any sum by way of a fee or remuneration for or in respect of any matter or thing done by him in relation to proceedings under this Part. (5) On the hearing of the application the Court shall make a thorough investigation without regard to legal forms or solemnities and shall not be bound by any rules of evidence, but may inform itself in such manner as it thinks fit. (6) All forms, notices, declarations, and other documents prescribed by the rules to be filed with the registrar by the applicant or by any other party in relation to an application under this section for a determination shall be produced to the Court by the registrar at the hearing of that application and shall upon such production be evidence in the proceedings, but without prejudice to the right of the party who filed any such form, notice, declaration, or other document to adduce evidence in relation to, or to his liability to be cross-examined upon, any information or particular contained therein. Moreover, the Court may, if it thinks fit, require any of the following persons to appear and be examined and cross-examined upon any informa­ tion or particulars contained in any such form, notice, declaration, or other document, that is to say:- (a) The applicant or other party who filed with the registrar that form, notice, declaration, or other document; or (b) (Where it appears that some other person supplied the information or particulars in question) that other person, and failing obedience to such requirement may reject that information or particulars. 650 LANDLORD AND TENANT Vol. 9

(7) Power to fix fair rent of premises not let at time of application. (a) Any person who is entitled to the rents and profits of any dwelling­ house may, notwithstanding that the premises are not leased, make application in writing to the Court to determine the fair rent of the dwelling-house. (b) Upon such application the fair rent of the dwelling-house may be determined in manner provided by this Part and the provisions of this Part shall, with all necessary modifications, apply accordingly. The person making the application shall be deemed to be the lessor of the premises. (c) Where the dwelling-house is the subject of any mortgage, the mortgagee shall be entitled to be a party to the proceedings upon the application. For matters to be considered in determining fair rent, see s. 17. As to certificate of the court's determination, see rule 29, p. 705, post. Except with the consent of the court, a notice to quit may not be given within six months of the making of a determination, s. 43. As to the effect of this section generally, see Court v. Robinson, [1951] 1 All E.R. 209. See also Stagg v. Brickett, [1951] 1 All E.R. 152 (letting of furnished house and subsequent purchase of furniture) and Keane v. Clarke, [1951] 2 K.B. 732. It appears that a decision that premises are not prescribed premises is binding on the parties to the application in subsequent proceedings in other courts, Gibbs v. McCorquodale (1950), 67 W.N.(N.S.W.) 169, but not a decision as to the relationship of lessor and lessee, Torrisi v. Oliver, [1951] V.L.R. 380. See also R. v. City of London etc. Rent Tribunal; Ex parte Honig, [1951] 1 All E.R. 195; [1951] 1 T.L.R. 41. On the right of such a tribunal to determine for itself in the first instance the extent of its jurisdiction. d. R. v. Hammersmith and Kensington Rent Tribunal; Ex parte Zerek, [1951] 2 K.B. 1; [1951] 1 All E.R. 482; [1951] 2 T.L.R. 423. Subsection (5) applies solely to procedural matters and cannot be made to exclude inferentially rules of law such as the audi alteram partem rule, R. v. Will and Toon; Ex parte Visona, [1960] Qd. R. 123.

16. Maximum rentals. (1) The Court shall by its determination fix the fair rent of any dwelling-house at such amount that the annual rental thereof (after allowing for any services provided by the lessor in con­ nection with the lease, for the annual rates and insurance premiums paid by the lessor in respect of the dwelling-house, and for the estimated annual cost to the lessor of repairs, maintenance, and renewals of the dwelling­ house and fixtures thereon and for the estimated amount of annual depreciation in the value of the dwelling-house and for the estimated time per annum during which the dwelling-house may be vacant) shall not exceed six dollars per centum of the capital value of the dwelling­ house including any land or appurtenances leased with it. (2) For the purposes of this section the capital value of a dwelling­ house shall be- (a) Where that dwelling-house existed on the first day of July, one thousand nine hundred and forty-eight, the present actual capital value thereof reduced by twenty per centum of that present actual capital value; (b) Where that dwelling-house did not exist on the first day of July, one thousand nine hundred and forty-eight- (i) the present actual capital value thereof reduced by twenty per centum of that present actual capital value; or LANDLORD AND TENANT ACTS, 1948 TO 1961 ss. 15-17 651

(ii) the actual capital value thereof as at the date upon which the erection of the dwelling-house was completed, less such depreciation (if any) in value since that date as the Court considers to be fair and equitable, whichever is the greater. (3) The Court shall, in fixing the fair rent of any dwelling-house, pursuant to this section, disregard the effect on the capital value of that dwelling-house, of the National Security (Economic Organisation) Regulations of the Commonwealth or Part V-Land Sales, of "The Profiteering Prevention Act of 1948". ( 4) Where any dwelling-house forms a relatively small part of any premises, and the determination of the capital value of such dwelling­ house in accordance with the provisions of this section would be excep­ tionally difficult and/or involve the incurring of great expense to all or any of the parties, the Court may determine upon such evidence as it, in its sole discretion, thinks fit the capital value of that dwelling-house at such sum as it is satisfied is fair and equitable. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 5; Act of 1957, 6 Eliz. 2 No. 35, s. 4 (I), as from 1 March 1959; Act of 1961, 10 Eliz. 2 No. 29, s. 4 (1), as from 1 March 1962. Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965. Act referred to: Profiteering Prevention Acts, 1948 to 1959, title MERCANTILE LAW. On the effect of this section, cf. Court v. Robinson, [1951] 1 All E.R. 209. On the letting of a furnished house and subsequent purchase of furniture, cf. Stegg v. Buckett, [1951] 1 All E.R. 152. See also Keane v. Clarke, [1951] 2 K.B. 732; [1951] 2 All E.R. 18; [1951] 2 T.L.R. 77. As to fair rent of holiday premises, see s. 18. As to variation by the registrar of determination, see s. 20B. For power of lessors to increase rentals, see ss. 20e, 20D.

17. Matters to be considered in detennining fair rent. (1) In determining the fair rent the Court shall have regard to- Ca) The capital value of the dwelling-house as ascertained in accordance with the appropriate provisions of section sixteen of this Act; (b) The annual rates and insurance premiums paid in respect of the dwelling-house; (c) The estimated annual cost of repairs, maintenance, and renewals of the dwelling-house and fixtures thereon; (d) The estimated amount of annual depreciation in the value of the dwelling-house and the estimated time per annum during which the dwelling-house may be vacant; (e) The rents of comparable dwelling-houses in the locality of the dwelling-house the subject of the application; (f) The rate of interest charged upon overdrafts by the Common­ wealth Bank of Australia; (g) Any services provided by the lessor or lessee in connection with the lease; 652 LANDLORD AND TENANT Vol. 9

(h) Any obligation on the part of the lessee to effect any improve­ ments, alterations, or repairs to the dwelling-house at his own expense; (i) The justice and merits of the case and the circumstances and conduct of the parties; and (j) Any hardship which would be caused to the lessor or lessee or any other person by the making of a determination increasing or reducing the rent of the dwelling-house including (but without limiting the generality of the word "hardship") any loss which might be imposed upon the lessor by a determination fixing the rent of the dwelling-house at an amount less than the lessor's liability under a mortgage of, or contract of sale in respect of the dwelling-house, or under a hire-purchase agreement or contract of sale in respect of any goods leased with the dwelling-house. (2) Except where the Court is satisfied, regard being had to any of the matters set out in subsection one of this section, that an increase is equitable, the fair rent shall not exceed the rent lawfully payable for the dwelling-house under and in accordance with the provisions of section thirteen of this Act: Provided that for the purposes of this subsection the purchase price paid by the lessor shall not be a matter rendering an increase in rent equitable unless the Court is satisfied that such price was fair and equitable, regard being had to the capital value of the dwelling-house in question as ascertained in accordance with the appropriate provisions of section sixteen of this Act. Capital value-Hume Investments Ltd. v. Zucker, [1958] V.R. 623; [1959] A.L.R. 60, where O'Bryan, J., construing similar provisions, held, following Sandlzurst and Northern District Trustees Executors and Agency Co. Ltd. v. Auldridge, [1952] V.L.R. 488, that appropriate capital value of the premises meant the market value. For matters to be taken into account when determining a fair rent, see John A. Gilbert Pty. Ltd. v. Freeman, [1961] N.S.W.R. 155. In determining the capital value, the premises include the buildings and other improvements affixed permanently to the premises, North Shore Gas Co. Ltd. v. Commissioner of Stamp Duties (1940), 63 C.L.R. 52; Reid v. Smith (1905), 3 C.L.R. 656. A valuation may require to be supplemented by other evidence, Harris v. Minister of Public Works (1912), 14 C.L.R. 721. For the ordinary principle of ascertaining the value of land on a given date, see Spencer v. Commonwealth (1907), 5 c.L.R. 418, adopted per curiam in Commissioner of Land Tax v. Nathan (1913), 16 C.L.R. 654, at p. 661. The capital value is the market value, Reading v. Valuer-General (1923), 6 L.G.R.(N.S.W.) 132. The best evidence of market value is sales of comparable land or, of course, previous sales of the land in question, or what a willing purchaser would have had to pay to a vendor who was not anxious, but was not unwilling, to sell, Spencer v. Commonwealth (1907), 5 C.L.R. 418. The sales of comparable land must not be too remote in point of time and may require to be supplemented by evidence as to change in values, ibid. See also Heselton's Estate v. Valuer-General (1923), 6 L.G.R.(N.S.W.) 99. An offer of a price, not followed by a concluded contract for sale, is not admissible evidence, McDonald v. Depllly Federal Commissioner of Land Tax (1915), 20 C.L.R. 231. In valuing for most purposes, capitalization of profits may be used as a subsidiary method of valuing, but is not generally a reliable method if used alone, Commissioner of Land Tax v. Nathan (1913), 16 C.L.R. 654. at p. 661. In relation to premises under an Act such as this, capitalization of profits will in most cases involve a capitalization of rentals. See, for example. Bank of New South Wales v. Bland Shire COllncil (1926) 9 L.G.R.(N.S.W.) 129; Maron v. Valuer-General (1924), 7 L.G.R.(N.S.W.) 33. LANDLORD AND TENANT AcrS, 1948 TO 1961 SS. 17, 18 653

Unimproved value may be used in ascertaining capital value where, in the circumstances, that method will give a satisfactory result, but otherwise the result will not be adequate or conclusive, Campbell v. Deputy Federal Commissioner of Land Tax (1920), 27 C.L.R. 316; Jowett v. Federal Commissioner of Taxation (1927). 38 C.L.R. 325. Repairs, maintenance and renewals-Alterations and reconstruction and the making good of structural defects are not repairs, Lazar v. Williamson (1886), 7 L.R.(N.S.W.) (L.) 98. "Repairs" does not extend to reconstruction of the whole or substantially the whole of the building, but it does include restoration by renewal or replacement of sUbsidiary parts, O'Neill v. Coffill (1920), 20 S.R.(N.S.W.) 264. "It is a question of degree whether rebuilding part of a house does or does not fall within ,the category of repairing a house", Graham v. Markets Hotel Pty. Ltd. (1934), 67 C.L.R. 567, at p. 579. "Renewal" does not extend to substitution by use of a different type of material and a different mode of construction, Mosman Municipal Council v. Shaw (1928), 11 L.G.R.(N.S.W.) 150. Comparable dwelling-houses-In De Iacouo v. Lacanale (No.2). [1958] V.R. 7, it was held that the physical nature of the premises was of paramount importance in construing the expression "comparable premises". "Comparable premises" includes premises which are outside the control of the Act, Hume Investments Ltd. v. Zucker, [1958] V.R. 623; [1959] A.L.R. 60. Justice and merits-The court may take into account the justice and merits of the case and the conduct of the parties generally, Sandhurst v. Northern Districts Trustees Executors and Agency Co. Ltd. v. Au/dridge, [1952] V.L.R. 488. Easements-As to the benefit to the lessee of easements and similar rights, see Mills v. Robinson, [1950] S.A.S.R. 25. Hardship-See notes to s. 49.

18. Fair rents of holiday premises. (1) The Court shall not be bound by the provisions of section sixteen of this Act as respects the determination of the fair rent of any dwelling-house at any time when that dwelling­ house is "holiday premises" under and within the meaning of this Act. (2) In determining the fair rent of any holiday premises the Court shall have regard to-- (a) The estimated greater annual depreciation in the value of the holiday premises and fixtures thereon arising from the estimated time per annum during which those holiday premises may be vacant; (b) The estimated greater annual cost of repairs, maintenance and renewals of the holiday premises and fixtures thereon arising from frequent changes in the tenancy of those holiday premises; and (c) The lesser annual amount of rental derived by the lessor by reason of the letting thereof as holiday premises only. (3) Subject to having regard to the matters set out in subsection two of this section, the Court shall have regard to the matters set out in sub­ section one of section seventeen of this Act and to the proviso to sub­ section two of that section in determining the fair rent of any holiday premises. ( 4) Where the fair rent of holiday premises as such has been determined the fact that the dwelling-house comprising those holiday premises is no longer "holiday premises" under and within the meaning of this Act shall be a ground for further proceedings to determine the fair rent of the premises in question as a dwelling-house and not as holiday 654 LANDLORD AND TENANT Vol. 9

premises, and those further proceedings may be commenced at any time notwithstanding that a period of twelve months has not elapsed since such firstmentioned determination. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 6.

19. Period for which fair rent may be fixed. Any determination under this Act fixing the fair rent of any dwelling-house may fix the rent to be so payable at an amount payable for every week, month, or other period.

20. Date from which determination to operate. Every determination shall be in force on and from a date fixed by the Court, which date shall be not earlier than the date of the application. Applications for determination of fair rent of dwelling-houses are made under s. 14. Determinations are made under s. 15. As to date of application, see rule 23, p. 70S, post. Except with the consent of the court, a notice to quit may not be given within six months of the making of a determination, s. 43.

20A. When Court may determine of its own motion fair rents. (1) Not­ withstanding any thing to the contrary contained in this Part, whenever­ (a) Two or more dwelling-houses are comprised in one and the same premises, and an application for a determination is made in respect of one of those dwelling-houses; or (b) Any premises are declared under and for the purposes of this Act to be special premises, the Court may cause the registrar at Brisbane to notify in writing and the registrar shall notify accordingly- (i) The lessor; and (ii) The res pecti ve lessees, of each and every dwelling-house comprised in those premises, that the Court will, at the time and place specified in the notification, determine the respective fair rents of all dwelling-houses comprised in those premises. The notices so given to the lessor and lessees respectively shall, for the purposes of this Part, be deemed to be applications for the determina­ tion of the fair rents as aforesaid. (2) For the purposes of the making of such determinations by the Court an authorised officer shall inspect the premises and make any further investigation necessary and the provisions of subsection three of section seventy-two of this Act shall apply with respect to his report thereon. (3) At the time specified in the notifications referred to in subsection one of this section the Court may commence to make such inquiry as it considers necessary to enable it to make such determinations, and for that purpose the Court shall have the same powers as it has in connection with an application for a determination under the provisions of this Part other than this section, and every determination made by the Court shall have the same effect for all purposes as a determination made upon such an application. Inserted by Act of 1954, 3 Eliz. 2 No. 42, s. 5. Generally as to applications to determine fair rents, see s. 14. For duties of registrar, see rule 12, p. 703, post. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.18-20c 655

20B. Variation by registrar of a determination. (1) The provisions of this section shall not affect the application for, or the making of, any determination under any other provision of this Part. (2) An application to vary under this section the fair rent of any dwelling-house (or of any dwelling-house together with goods leased therewith) on the grounds of an increase or decrease in the amount of all or any of the following, namely-any ra.tes or any charges fo~ the supply of electricity, gas, water, or fuel payable In respect of the dwe!hng-house­ may be made to the registrar by the lessor or lessee at any time and from time to time. (3) Upon an application under this section, and upon proof to his satisfaction of the increase or, as the case may be, decrease in the rates or charges in question and of the amount thereof, the registrar may vary the fair rent in question by adding to or subtracting from, according to whether there has been an increase or decrease, each and every periodical amount thereof the sum which, he is satisfied, is equivalent to the variation in the aforesaid rates or charges payable in respect of that period. The registrar may do so without requiring notice of the application to be given to any other person by the applicant but the registrar shall notify the increase or, as the case may be, decrease in the fair rent to any and every person who, to his knowledge, would be entitled to be a party to proceedings upon an application for a determination in respect of the dwelling-house in question. ( 4) Every variation of the fair rent of a dwelling-house (or of any dwelling-house together with goods leased therewith) made under this section shall be in force on and from the date fixed by the registrar on and from which he is satisfied the increase or, as the case may be, decrease in the rates or charges in question became effective. (5) The fair rent of any dwelling-house (or of any dwelling-house together with goods leased therewith) as varied under this section shall for the purposes of the provisions of this Act (excepting the provisions of section twenty-three of this Act) be deemed to have been fixed under a determination under this Part but any variation of the fair rent by a registrar under this section shall be deemed not to be a determination for the purposes of section twenty-three of this Act. Inserted by Act of 1954, 3 Eliz. 2 No. 42, s. 6. As to application, see rule 13, p. 703, post. 20c. Power to increase rental. (1) A lessor of any dwelling-house existing on the tenth day of February, one thousand nine hundred and forty-two, may, after the first day of March, one thousand nine hundred and fifty-eight, subject to the express provisions of any lease of the premises for a fixed term which has not expired, by notice in writing served on the lessee, require that after the expiration of fourteen days from the service of that notice the rent of the dwelling-house which has been fixed prior to the first day of March, one thousand nine hundred and fifty-eight, under- (i) The provisions of section thirteen of this Act; or (ii) A determination under this Part, shall be increased to such an amount as is specified in the notice not being more than twenty per centum in excess of the rent so fixed prior to the first day of March, one thousand nine hundred and fifty-eight. 656 LANDLORD AND TENANT Vol. 9

Upon the expiration of the said period of fourteen days the amount so specified shall (subject to subsection two hereof) be the fair rent of the premises for all the purposes of this Act and notwithstanding that the date from which such increase shall take effect does not coincide with the last day of the period of the tenancy. (2) The fair rent of any dwelling-house as varied under this section shall for the purpose of the provisions of this Act (excepting the provisions of section twenty-three of this Act) be deemed to be fixed under a determination under this Part, but any variation of the fair rent by the lessor under this section shall be deemed not to be a determination for the purpose of section twenty-three of this Act. Inserted by Act of 1957, 6 Eliz. 2 No. 35, s. 5. See also s. 20D. 20D. Power further to increase rental. ( 1) A lessor of any dwelling­ house (or of any dwelling-house together with the goods leased therewith) existing on the first day of July, one thousand nine hundred and forty­ eight, may, after the first day of March, one thousand nine hundred and sixty-two, subject to the express provisions of any lease of the premises for a fixed term which has not expired, by notice in writing served on the lessee, require that after the expiration of fourteen days from the service of that notice the rent of the dwelling-house which has been fixed prior to the first day of March, one thousand nine hundred and sixty-two, under or pursuant to- (i) The provisions of section thirteen, 20B or 20c of this Act; or (ii) A determination under this Part, shall be increased to such an amount as is specified in the notice not being more than fifteen per centum in excess of the rent so fixed prior to the first day of March, one thousand nine hundred and sixty-two. Upon the expiration of the said period of fourteen days the amount so specified shall (subject to subsection (2) hereof) be the fair rent of the premises for all the purposes of this Act and notwithstanding that the date from which such increase shall take effect does not coincide with the last day of the period of the tenancy. (2) The fair rent of any dwelling-house as increased pursuant to this section shall for the purposes of the provisions of this Act (excepting the provisions of section twenty-three of this Act) be deemed to be fixed under a determination under this Part, but any variation of the fair rent by a lessor under this section shall not be deemed to be a determination for the purpose of section twenty-three of this Act. Inserted by Act of 1961, 10 Eliz. 2 No. 29, s. 5. See also s. 20c. 21. Effect of fixing fair rent. ( 1) If the fair rent of any dwelling-house (or of any dwelling-house together with goods leased therewith) has been fixed under- (i) The provisions of section thirteen of this Act; (ii) A determination under this Part, then until the fair rent so fixed is increased or decreased by a further determination (or, in the case of any such fair rent fixed under the provisions of the said section thirteen, by a determination) under this Part, and notwithstanding any alterations, additions, repairs, or renovations LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.20c-21 657 to the dwelling-house (whether structural or otherwise) or any change in ownership or tenancy of the dwelling-house (or, as the case may bit, of the dwelling-house and the goods leased therewith), or in the nature or value of the services supplied by the lessor or in the goods leased with the dwelling-house, the rent which shall be payable in respect of the dwelling­ house shall not exceed the fair rent fixed as aforesaid. (2) Any amount by which the rent charged in respect of the dwelling-house (or of the dwelling-house and the goods leased therewith) is in excess of the fair rent fixed as aforesaid shall, notwithstanding any agreement to the contrary, be irrecoverable by the lessor. (2A) On and from the date (hereinafter in this subsection referred to as the "said date") of the passing of "The Landlord and Tenant Acts Amendment Act of 1950" the rent which shall be payable by the lessee to the lessor and which shall be recoverable by the lessor from the lessee where the fair rent shall have been fixed (whether before or after the said date) as aforesaid shall be that fair rent while it remains in force (or in a case of a fair rent fixed as aforesaid before the said date continues to remain in force on and after the said date). If the lessee fails to make due payment of any amount of the rent payable to and recoverable by the lessor as aforesaid the lessor may, notwithstanding any term, provision, or covenant of a lease made before and in force after the fair rent has been fixed as aforesaid, recover that amount: Provided that the foregoing provisions of this subsection shall apply so that rent shall not be payable or recoverable, or any unpaid amount of rent be recovered, thereunder for and in respect of a time or times in respect whereof the lessor and lessee shall, whether before or after the said dat(': but in every case after the fair rent has been fixed as aforesaid, have agreed that a rent less than the fair rent fixed as aforesaid shall be payable, but in every case of such an agreement the rent payable to the lessor and recoverable by him in respect of the agreed upon time or times shall be the rent which it has been so agreed shall be payable: Provided further that where the lessor and the lessee shall have agreed as aforesaid that a lesser rent shall be payable for and in respect of a time which is not a fixed period agreed upon by them, then that lessor may determine that agreement as on and from a later date by notifying the lessee that he requires payment, on and from that date, of the amount of the fair rent fixed as aforesaid: Provided finally that a lessee under a lease for a fixed term who is required by the foregoing provisions of this subsection to pay rent in excess of the amount thereof agreed upon in that lease may, notwithstanding any term, provision or covenant of that lease, for that reason terminate his tenancy thereunder by giving up possession to the lessor of the leased premises within thirty days after the date when the increased rent first became payable by him. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 7; Act of 1950. 14 Geo. 6 No.9, s. 2. Act referred to: Landlord and Tenant Acts Amendment Act of 1950, not reprinted. Section 2 (2) of the amending Act of 1950 provides as follows:- "(2.) Subsection 2A of section twenty-one of "The Landlord and Tenant Acts, 1948 to 1950" (as inserted by this Act), shall not apply to or with respect to any amount of rent for or in respect of any time or times 658 LANDLORD AND TENANT Vol. 9

before the date of the passing of "The Landlord and Tenant Acts Amend­ ment Act of 1950" which, having been lawfully payable by a lessee to a lessor under the proviso to subsection two of the said section repealed by this Act, shall not have been paid to or recovered by that lessor, and the said repealed proviso as existing prior to the repeal thereof by this Act shall continue in force so far as relates to any such amount. Where a sum paid on account of any rent for or in respect of any time or times before the date of the passing of "The Landlord and Tenant Acts Amendment Act of 1950" exceeded the amount of that rent recover­ able by the lessor under the aforementioned repealed proviso, then, notwithstanding any rule or practice of law to the contrary, the amount of that excess shall be recoverable in any court of competent jurisdiction as a debt from the lessor who received payment thereof by the lessee by whom it was paid." For recovery of rent overpaid, see s. 22. For provisions relating to a fresh determination, see s. 23. In the interpretation of subsection 2 of this section the decision of the Full Court of Victoria in Crundwell v. Bertrand, [1953] V.L.R. 1; [1953] A.I ~. 52, noted under s. 27, should be taken into consideration. The English Court of Appeal has decided that a review of rent under s. 85 (6) of the Housing Act, 1950, does not make a tenant liable, ip

23. When application may be made for fresh determination. If the fair rent of any dwelling-house (or of any dwelling-house together with goods leased therewith) has been fixed under- (i) The provisions of section thirteen of this Act and that fair rent is the fair rent as fixed by a determination made prior to the passing of this Act under, and in force at the expiration of, the National Security (Landlord and Tenant) Regulations of the Commonwealth; or (ii) A determination under this Act, no further proceedings under this Act for the fixing of the rent of those premises shall be commenced until after a period of twelve months from the time the fair rent was fixed as aforesaid (such time being, in the case of any such determination under the said Regulations of the Common­ wealth, the date when that determination was made) except on the ground that- (a) By an error or omission, an injustice has been occasioned by the determination; or (b) Increased outgoings or losses have been or will be incurred by the lessor by reason of the use made by the lessee of the dwelling-house since the date of the determination; or (c) The determination has been based on an incorrect estimate of the value of the dwelling-house or of goods leased therewith or of the services supplied by the lessor, or of premises of which the dwelling-house forms part, or on an incorrect calculation, and by reason thereof an injustice has been occasioned by the determination; or (d) There has been a substantial alteration in the terms and conditions upon which the dwelling-house is leased; or (e) Substantial alterations or additions have been made to the dwelling-house, to the goods leased therewith, or to the services supplied by the lessor, since the determination was made; or (f) The value of the dwelling-house, of the goods leased there­ with, or of the services supplied by the lessor has materially decreased or increased since the determination was made; or (g) In the case of any shared accommodation, since the deter­ mination fixing the fair rent came into force any of the matters set out in section twenty-four of this Act has occurred; or (h) (In the case of a determination based on the consent of the applicant and of any other person or persons who were entitled to be parties to the application) the person commencing the further proceedings for a determination did not so consent; or (i) The determination was made before the passing of "The Landlord and Tenant Acts Amendment Act of 1961" and such determination is inequitable by reason only of the fact that the provisions of "The Landlord and Tenant Acts Amendment Act of 1961" were not in force at the time of such determination. 660 LANDLORD AND TENANT Vol. 9

As amended by Act of 1948, 12 Geo. 6 No. 46, s. 8; Act of 1949, 13 Geo. 6 No. 31. s. 3; Act of 1957, 6 Eliz. 2 No. 35, s. 6; Act of 1961, 10 Eliz. 2 No. 29, s. 7. Act referred to: Landlord and Tenant Acts Amendment Act of 1961, not reprinted. See ss. 20n (5), 20c (2), 20D (2). As to application, see rule 14, p. 703, post. 24. Determination npon variation in arrangement of shared accommoda­ tion. Where, after the fair rent of any shared accommodation has been fixed under- (i) A determination made prior to the passing of this Act under, and in force at the expiration of, the National Security (Landlord and Tenant) Regulations of the Commonwealth, which is continued in force by this Act; or (ii) A determination under this Act- (a) Any part of the shared accommodation is leased separately; or (b) The whole or any part of the shared accommodation is leased as part of other shared accommodation; or (c) The shared accommodation is leased- (i) Without the use of any convenience or service which was available to the tenant at the time when the deter­ mination was made; or (ii) With the use of any convenience or service which was not so available; or (d) Any services, not supplied at the date of the determination, are supplied to any lessee, such further determination or determinations as could, except for the provisions of section twenty-three of this Act, be applied for in the circumstances, may be applied for and made under this Act.

DIVISION II1---GENERAL 25. Penalty for demanding rent in excess of fair rent fixed. ( 1) Any person who, whether as principal or agent or in any other capacity, in any rent book or similar document wilfully makes any entry showing or purporting to show any lessee as being in arrear in respect of any sum which by virtue of this Act is irrecoverable shall be guilty of an offence against this Act. (2) Any person who, whether as principal or agent or in any other capacity, wilfully demands or wilfully receives as rent in respect of any dwelling-house (or of any dwelling-house together with goods leased therewith) any sum which by virtue of this Act is irrecoverable shall be guilty of an offence against this Act. (3) Any person who is knowingly a party to any contract or arrange­ ment under which any sum is paid or agreed to be paid to that person as rent for any dwelling-house (or of any dwelling-house together with goods leased therewith) shall, if that sum is, by virtue of this Act, irrecoverable, be guilty of an offence against this Act. As to recovery of overpaid rent, see s. 22. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.23·27 661

"Irrecoverable" does not mean "irrecoverable by the lessee"; and the magistrate need only be satisfied as to the substantial identity of the premises at the time of fixing the fair rent and the letting in question. The addition of furniture does not render the premises different prescribed premises. See Gogel v. Lambie, [1954] A.L.R. 230; Oberman v. Helbraun, [1950] V.L.R. 55. But see Duffy v. K-Dee Ply. Ltd. (1954), 71 W.N.(N.S.W.) 181; Gluchowska v. Tottenham Borough Council, [1954] 1 All E.R. 408. As to onus of proof, see Davies v. O'Sullivan, [1948] S.A.S.R. 297; Fenwick v. Boucaut, [1952] A.L.R. 290; McLachlan v. Rendall, [1952] A.L.R. 777. 26. Record of rents. (1) Any lessor of any dwelling-house who fails, by himself or his agent, to keep or cause to be kept a record showing the rent received in respect of that dwelling-house (or of that dwelling-house together with any goods leased therewith) shall be guilty of an offence against this Act. (2) Any lessor of any dwelling-house (or of any dwelling-house together with goods leased therewith) or any agent of any such lessor who wilfully makes or wilfully allows to be retained, in any record showing the rent of that dwelling-house (or of that dwelling-house and goods) any entry which is false in a material particular shall be guilty of an offence against this Act. For a case in which a lessor was found not guilty of failing to produce a rent record, see Kirkwood v. Hanrahan (1945), 46 W.A.L.R. 46. See also Ex parte Wood; Re Williams (1932), 32 S.R.(N.S.W.) 177; Ramm v. Gralow, [1931] St. R. Qd. 351. 27. Certain payments prohibited. ( 1) A person shall not, whether as principal or agent or in any other capacity- (a) 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- (i) The grant, acceptance, assignment, or transfer of any lease of; or (ii) The renewal or extension of a lease or the continuance of a letting of; or (iii) Any agreement for a lease or for the renewal, extension, assignment, or transfer of a lease of; or (iv) His consenting to a sublease of; or (v) The vacating of, any dwelling-house except with the consent of the Court; (b) Pay, give, or receive, or offer, promise, or agree to pay, give, or receive, any sum of money or other consideration- (i) For obtaining or making available a key of any dwelling­ house; or (ii) For information as to a tenancy, or as to the possibility or likelihood of obtaining a tenancy, of any dwelling-house; or (c) Make it a condition of the granting of any lease of a dwelling­ house that the lessee shall effect any improvements, altera­ tions, or repairs at his own expense; or (d) Require a lessee or prospective lessee of any dwelling-house to pay more than two months' rent in advance or, if the rent is payable or to be payable by the week, more than four weeks' rent in advance. 662 LANDLORD AND TENANT Vol. 9

(2) Any person who contravenes or fails to comply with any provision of subsection one of this section shall be guilty of an offence against this Act. (3) Any sum paid in contravention of this section may be recovered by the person who paid it from the person to whom it was paid in an action for debt in any court of competent jurisdiction, or, if the person to whom it was paid is the lessor, may, without prejudice to any other method of recovery, be deducted by the lessee from any rent payable by him to the lessor within six months after the date of the payment. (4) Where a person has, in contravention of this section, been required to purchase or exchange any goods or goodwill, he may recover in any court of competent jurisdiction, from the person guilty of the contravention, so much of any amount paid, in accordance with the requirement, for the goods or goodwill purchased as exceeds the fair value thereof, or, as the case may be, an amount equal to the excess of the fair value of the goods which he has exchanged over the fair value of the goods which he has received in exchange. (5) The provisions of subsections three and four of this section shall be read so as not to affect the liability of any person to be punished for an offence against subsection one of this section. (6) This section shall not apply to any sum paid or received or to any matter or thing done in consideration or part consideration of or in association with the acquisition or disposition of any residential business. In this subsection "residential business" means the business of providing for valuable consideration in any premises lodging or board and lodging for four or more persons not being members of the family of the person who carries on such business which said premises, being thereunto required by any ordinance or by-law of a Local Authority, are by that Local Authority registered, licensed, permitted or otherwise approved as a boarding-house or lodging-house, and also means the business of letting for valuable consideration in any premises shared accommodation. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 9. As to application to court, see rule 15, p. 703, post. Subsection (1): The provisions of this section apply not only to a transaction completed by the grant of a lease but also to a transaction proposed or incomplete. See Bischof v. Trotter (1948), 76 C.L.R. 520, applied in McLachlan v. Rendall; McLachlan v. La Cerche, [1952] V.L.R. 501; [1952] A.L.R. 777. The master is criminally responsible for the act of his servant if the act is done within the general scope of the servant's employment. See Barker v. Levinson, [1951] 1 K.B. 312; [1950] 2 All E.R. 825; [1950] 2 T.L.R. 717 (where a rent-collector had no authority to negotiate the terms of the tenancy or to take a premium, but merely to let one of his employer's fiats to a named person if he was satisfied of her suitability as a tenant, and therefore the master was held vicariously responsible). On the exigencies of proof making the principal liable, see Navarro v. Moregrand Ltd. [1951] 1 K.B. 342; [1951] 2 T.L.R. 674. Cf. also, on standard of proof, Keane v. Clarke, [1951] 2 K.B. 732; [1951] 2 All E.R. 18; [1951] 2 T.L.R. 77, where the Court of Appeal distinguished Barker v. Levinson, supra. "Premium" is a word of art. It means here a cash payment made to the lessor. See R. v. Birmingham (West) Rent Tribunal; Ex parte Edgbaston Investment Trust Ltd. [1951] 1 K.B. 54; [1951] 1 All E.R. 198; [1951] 1 T.L.R. 77 where the King's Bench Division held that a payment made by tenants to builders for the conversion of dwelling-houses into fiats was not a premium within the !llea~ing of the Landlord and Tenant (Rent Control) Act, 1949, and granted certIOrari. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.27-29 663

As to prepayment of rent, see Grace Rymer Investments Ltd. v. Waite, [1958] All E.R. 138. See also Simon v. Baker (1955), 73 W.N.(N.S.W.) 162. Further as to what constitutes a premium, see Brakspear & Sons Ltd. v. Barton, [1924] 2 K.B. 88; Sharp Bros. & Knight v. Chant, [1917] 1 K.B. 771. In Crundwell v. Bertrand, [1953] V.L.R. 1; [1953] AL.R. 52, where premises consisting of a shop and dwelling, of which the fair rent had been fixed at £1 7s. 6d. a week were by indenture leased together with certain scheduled fittings plant, etc., and the right to use the name under which the lessor had conducted the business there, at a rent of £9 a week, the Full Court construed the phrase "other than rent" as ejusdem generis with "bonus" and "premium" and discharged an order nisi to review, the stipendiary magistrate having given judgment for the complainant lessor. The words "in association with" have been construed as involving some casual connexion between the receipt of money and the grant of the tenancy; but to constitute an offence against the section it is not necessary that the recipient of the money should be the actual grantor of the lease. Ex parte Wilamek; Re Le Brocque (1953), 70 W.N.(N.S.W.) 71. Where the word "transfer" is used in conjunction with technical descriptions of other means of disposal, it must receive its ordinary meaning, Ex parte Healy; Re Green (1948), 48 S.R.(N.S.W.) 449. The distinction in the Landlord and Tenant (Amendment) Act 1948-1960 (N.S.W.) between the concepts of "rent" on the one hand, and "bonus" and "premium" on the other hand, is not one based on the nomenclature employed by the parties to a lease, but is a distinction of substance. So held in Nixon v. Doney [1960] N.S.W.R. 2 applying Samuel v. Salmon & Gluckstein Ltd. [1946] Ch. 8; [1945] 2 All E.R. 520. As to recovery of money unlawfully paid, see KiTiri Cotton Co. Ltd. v. Dewani, [1960] 2 W.L.R. 127. On the onus of proving the absence of the consent of the court in breach of this section see Roddy v. Perry (No.2) (1958), 75 W.N.(N.S.W.) 89, where the full court of that State reviewed the authorities on section 36 (1) (a) of the Landlord and Tenant (Amendment) Act 1948-1960, which insofar as it deals with the onus of proof corresponds to s. 27 (1) of this Act. Subsection (3) makes it quite clear that the section was not intended to nullify the transaction as a whole. See Harris v. Wood, [1949] V.L.R. 32, a decision of Herring, C.J., on regulation 33 (2) of the National Security (Landlord and Tenant) Regulations, of which this subsection is a transcript. See further, on the scope and policy of the section, the judgment of Mansfield, S.P.I., in Richardson and Richardson v. Palmos and Palmer, [1949] SI. R. Qd. 148; 43 Q.J.P.R. 142. On the principle that a trustee takes no better title than the bankrupt had, the tenant of a bankrupt landlord who has been overpaid is entitled by virtue of this subsection to remain in the premises rent free until the amount of the lawfully recoverable rent shall have sufficed to recoup him the amount of rent overpaid. See the judgment of Jenkins, J., in Bradley-Hole v. Cuzen, [1953] 1 Q.B. 300; [1953] 1 All E.R. 87, sub-nomine (with which the other members of the Court of Appeal, agreed), applying Bendall v. McWhirter, [1952] 1 All E.R. 1307, and explaining Kitchen's Trustee v. Madders, [1949] 2 All E.R. 1079. 28. Supply of particulars as to rent of premises. Upon application describing any dwelling-house, and upon payment of a fee of ten cents, the registrar concerned shall give or (in the case of an application made by post) send by post to the person so applying a statement in writing as to whether any determination or order fixing the fair rent of that dwelling­ house is in force and the amount and other particulars of such rent. Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965. 29. Effect on guarantee of fixing rent. If the payment of the rent of any dwelling-house (or of any dwelling-house and of goods leased therewith) is guaranteed and subsequently to the giving of the guarantee the fair rent of the dwelling-house (or dwelling-house and goods) is fixed under this Act, then, if the rent so fixed is less than the amount so guaranteed, the 664 LANDLORD AND TENANT Vol. 9 guarantee shall be construed as if the amount guaranteed to be paid was the amount fixed as the fair rent under this Act; but in any other case the fixing of the fair rent under this Act shall not affect the guarantee.

30. Certificate as to fair rent. ( 1) In any proceedings before the Court, a certificate by the registrar of that Court (or of the Court at some other place appointed for holding courts of petty sessions) that, in respect of a period specified in the certificate, the fair rent of any dwelling-house (or of any dwelling-house and goods leased therewith) was fixed under this Act, and specifying the amount thereof, shall be evidence of the matters certified to. (2) Judicial notice shall be taken of the signature of the person signing any such certificate and of the fact that he is, or has been, the registrar of the Court concerned. "Courts of petty sessions" now Magistrates Courts. See Justices Acts Amend­ ment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. 31. Threats, etc., against lessees prohibited. A person shall not use, either verbally or in writing, threatening, intimidatory, offensive, or insulting words to a lessee or to the wife, child, or parent of a lessee of a dwelling­ house- (a) To dissuade or prevent that lessee from making or prosecuting an application for a determination; or (b) On account of that lessee making or prosecuting an applica­ tion for a determination; or (c) For the purpose of procuring that lessee to refrain from making or prosecuting an application for a determination; or (d) For the purpose of procuring that lessee to discontinue the prosecution of an application for a determination. See Wright v. Curnow, [1947] S.A.S.R. 225, at p. 235. 32. Boycotts, etc. ( 1) Any owner of a dwelling-house or his agent who refuses or who procures or attempts to procure any person to refuse a lease, or the renewal or extension of a lease, of a dwelling-house to any other person on the ground that such other person has made or prosecuted an application for a determination under this Act, or under "The Fair Rents Acts, 1920 to 1938," or under the National Security (Landlord and Tenant) Regulations of the Commonwealth shall be guilty of an offence against this Act. (2) In any prosecution for an offence against subsection one of this section, where all the facts and circumstances constituting the contraven­ tion, other than the ground of the refusal or, as the case may be, upon which the refusal was procured, are proved, it shall be upon the defendant to prove that the ground of refusal or, as the case may be, upon which the refusal was procured or attempted to be procured was not the ground alleged in the charge, but without prejudice to the right of the prosecutor to adduce evidence proving or tending to prove that the ground so alleged was the ground of refusal or, as the case may be, upon which the refusal was procured or attempted to be procured. (3) Any person who does, or attempts to do, or procures or attempts to procure the doing of, any act or thing for the purpose of imposing any detriment or disadvantage upon another person on the LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.29·33 665 ground that such other person has made or prosecuted any application specified in subsection one of this section shall be guilty of an offence against this Act. Act referred to: Fair Rents Acts, 1920 to 1938, repealed. As to penalties, see s. 70. 33. Offence to refuse lease of dwelling-house to applicant with family. (1) A person shall not refuse, or procure any person to refuse, to lease a dwelling-house to any person on the ground that it is intended that a child shall live in the dwelling-house. (2) In any prosecution for an offence against subsection one of this section, where all the facts and circumstances constituting the contra­ vention, other than the ground of the refusal, are proved, it shall lie upon the defendant to prove that the ground of refusal was not the ground alleged in the charge, but without prejudice to the right of the prosecutor to adduce evidence proving or tending to prove that the ground so alleged was the ground of refusal. (3) A person shall not- (a) Instruct any other person not to lease; or (b) State his intention, whether by advertisement or otherwise, not to lease, a dwelling-house to any person if it is intended that a child shall live in the dwelling-house. ( 4) A person shall not, for the purpose of determining whether or not he will lease a dwelling-house, inquire from any prospective tenant of the dwelling-house whether- (a) The prospective tenant has any children; or (b) It is intended that a child shall live in the dwelling-house if it is let to that prospective tenant. (5) In any prosecution for an offence against subsection four of this section, where all the facts and circumstances constituting the contraven­ tion, other than the purpose of the inquiry, are proved, it shall lie upon the defendant to prove that the purpose of the inquiry was not the purpose alleged in the charge, but without prejudice to the right of the prosecutor to adduce evidence proving or tending to prove that the purpose so alleged was the purpose of the inquiry. (6) It is unlawful to publish, by advertisement or otherwise, in any newspaper a statement by any person of his intention not to lease a dwelling-house to any person if it is intended that a child shall live in the dwelling-house. H any such statement is unlawfully published in a newspaper, the proprietor, publisher, and printer of that newspaper shall be deemed to have unlawfully published that statement and they, and each of them, shall be guilty of an offence against this Act. In this subsection the terms "newspaper," "proprietor," "publisher," and "printer" shall respectively have the meanings assigned to them by "The Printers and Newspapers Act of 1914." As amended by Act of 1949, 13 Geo. 6 No. 31, s. 4. 666 LANDLORD AND TENANT Vol. 9

Act referred to: Printers and Newspapers Act of 1914; see now Printers and Newspapers Act of 1953, title PRINTING. 34. Certain representations, etc., prohibited. A person shall not make any representation, or do any other act, whereby a person is informed that, upon the purchase or exchange of any goods, he will receive or obtain, or be entitled to receive or obtain, the grant, transfer, or assignment, renewal or extension of a lease, or consent to a sublease, of a dwelling­ house, with the exception of a residential business as defined in subsection six of section twenty-seven of this Act. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 10. 35. Dwelling-house not to be let unless in good repair. A person shall not let any dwelling-house which is not at the date of the letting in fair and tenantable repair. At common law, there is no implied covenant in a lease of a dwelling-house that the house is reasonably fit for habitation, Keates v. Cadogan (1851), 20 L.J.C.P. 76; [1843-60] All E.R. Rep. 433 aliter if a house is let furnished, Smith v. Marrable (1843), 11 M. & W. 5; Collins v. Hopkins, [1923] 2 K.B. 617; [1923] All E.R. Rep. 225. There is no implied covenant that a dwelling-house shall continue fit for habitation during the term, Sarson v. Roberts, [1895] 2 Q.B. 395. As to the meaning of "fair and tenantable repair", see 23 Halsbury's Laws of England, 3rd ed., p. 580. 36. Abolition of distress for rent of dwelling-honse. A person shall not levy or make any distress for rent of a dwelling-house (or of a dwelling­ house and goods leased therewith). The main statutory provisions as to distress are contained in the Distress Replevin and Ejectment Act of 1867, p. 595, ante, and the Law of Distress and Other Acts (Amendment) Act of 1934, p. 731, post. 37. Intervention by Minister. The Minister may, at any stage of any proceeding before the Court, intervene by counsel, solicitor, or agent on behalf of the Crown in right of the State, and may adduce evidence, examine and cross-examine witnesses, and address the Court. 38. Receipts for rent. The person receiving any payment of rent of a dwelling-house (or of a dwelling-house together with goods leased there­ with) shall at the time of receiving the payment give or cause to be given, to the person making the payment, a receipt for the payment specifying the date of the payment, the amount paid, the period in respect of which the payment is made, and the dwelling-house in respect of which the pay­ ment is made. 39. (Repealed.) Repealed by Act of 1961, 10 Eliz. 2 No. 29, s. 8 (1). Section 8 (2) of Act of 1961 provides as follows:- "(2) All Orders in Council under section thirty-nine of the Principal Act in force immediately prior to the commencement of The Landlord and Tenant Acts Amendment Act of 1961 are hereby revoked."

PART III-RECOVERY OF POSSESSION 40. Interpretation and application of Part III. ( 1) This Part shall be read with the "Summary Ejectment Act of 1867," and with the "Distress Replevin and Ejectment Act of 1867," as amended by subsequent Acts, and with any other Act, or law, or rule, or practice of law relating to the termination of tenancies or the recovery of possession of premises or the LANDLORD AND TENANT ACTS, 1948 TO 1961 ss. 33·41 667 ejectment of tenants therefrom, and every such Act, or law, or rule, or practice of law shall, save in so far as it is inconsistent with this Part, continue to apply as heretofore to and with respect to the recovery of tenements unlawfully held over. (2) Subject to subsection three of this section, this Part shall apply to and with respect to all premises which are prescribed premises under and within the meaning of this Act. (3) The Governor in Council may, from time to time, by Order in Council declare that this Part shall not apply to or with respect to premises, or the premises included in any class of premises, specified in the Order in Council. While any such Order in Council remains in force this Part shall not apply to or with respect to any premises, or any premises included in any class of premises, specified in that Order in Council. Acts referred to: Summary Ejectment Act of 1867, p. 749, post. Distress Replevin and Ejectment Act of 1867, p. 595, ante. For premises to which this Act does not apply. see s. 4A. 41. (1) Restriction on eviction. Except as provided by this Part the lessor of any prescribed premises shall not give any notice to terminate the tenancy or take or continue any proceedings to recover possession of the premises from the lessee or for the ejectment of the lessee therefrom. (2) A notice to quit given in contravention of this section shall not operate so as to terminate the tenancy in respect of which the notice was given. (3) Subject to this Part a lessor may take proceedings in any court of competent jurisdiction for the recovery of possession by him of any prescribed premises (or of any goods leased therewith) or for the ejectment of the lessee therefrom if the lessor, before taking the proceedings, has given to the lessee, upon one or more of the prescribed grounds but upon no other ground, notice to quit in writing for a period determined in accordance with the next succeeding section, and that period of notice has expired. (4) Service of the notice to quit may, without prejudice to any other mode of service, be effected by delivering the notice to- (a) Some person apparently over the age of sixteen years and apparently residing in or in occupation of the premises; or (b) The person by whom the rent of the premises is customarily paid. (4A) Substituted service--notice to quit. Where for any sufficient cause the service of any notice to quit cannot be effected, a court having jurisdiction to hear and determine the matter of recovery of possession of the premises may, upon an affidavit showing grounds, make such order for substituted or other service or substitution for service of notice by advertisement or otherwise as it may deem proper. (4B)- (i) Where a lessee of prescribed premises has died and probate or letters of administration of his estate have not been granted, any notice to quit which might have been given 668 LANDLORD AND TENANT Vol. 9

to the legal personal representative of the deceased lessee had probate or letters of administration of his estate been granted may be given by affixing the same to the premises and (a) Where any person or persons are apparently residing in or in occupation of the premises-by delivering the notice to any of such persons apparently over the age of sixteen years; (b) In any other case-by giving notice of the same twice in a daily newspaper circulating in the district in which the premises are situated. (ii) Where any proceedings for an order for the recovery of possession of any prescribed premises are taken in reliance of any notice to quit given in the manner provided in subparagraph (a) of paragraph (i) of this subsection, any occupant of the premises or other person claiming an interest therein shall be entitled to be heard in the proceedings. The contesting of any such proceedings shall not of itself be regarded as an act of administration or as intermeddling in the estate of the deceased lessee or as constituting the person so contesting any such proceedings executor de son tort of the deceased lessee. (iii) Nothing in this subsection shall affect the right of a lessor to give notice to quit otherwise than as provided in this subsection.

(5) The prescribed grounds shall be- (a) That the lessee has failed to pay the rent in respect of a period- (i) Where the lessee's period of occupation does not exceed six months-of not less than seven days; (ii) Where the lessee's period of occupation exceeds SIX months but does not exceed twelve months-of not less than fourteen days; and (iii) In any other case-of not less than twenty-eight days; (b) That the lessee has failed to perform or observe some other term or condition of the lease and the performance or observance of that other term or condition has not been waived or excused by the lessor; (c) That the lessee has failed to take reasonable care of the premises, or of any goods leased therewith, or has committed waste; (d) That the lessee has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers: (e) That the lessee or any other person has been convicted, during the currency of the lease, of any offence arising out of the use of the premises for any illegal purpose or that a court of competent jurisdiction has found or declared that the premises have, during the currency of the lease, been used for some illegal purpose; LANDLORD AND TENANT ACTS, 1948 TO 1961 s.41 669

(f) That the lessee has given notice of his intention to vacate the premises and, in consequence of that notice, the lessor has agreed to sell or let the premises or has taken any other steps as a result of which he would be seriously prejudiced if he could not obtain possession; (g) That the premises are reasonably required by the lessor for occupation by himself, or by some person who ordinarily resides with, and is wholly or partly dependent upon, him; (h) That the premises are used as, or have been acquired for use as, a parsonage, vicarage, presbytery, or other like premises and are reasonably required for the personal occupa­ tion of a minister of religion (including a person who, although not ordained, is performing all the duties of a minister of religion); (i) That the lessor is a trustee and the premises are reasonably required by a beneficiary under the trust for his personal occupation or for the occupation of some person who ordinarily resides with, and is wholly or partly dependent upon, him; (j) That the lessor is a person, body, or authority carrying on a hospital, or a trustee for such a person, body, or authority, and the use of the premises is reasonably required for the purposes of the hospital (including the accommodation of the staff of the hospital); (k) That the premises have been occupied or are occupied by some person in consequence of his employment (whether as an independent contractor or as an employee) by the lessor and are reasonably required for the personal occupation in consequence of that employment of some other person employed, or about to be employed (whether as another independent contractor or as another employee) by the lessor; (1) That the lessor has agreed to sell the premises by an agree­ ment which requires the purchaser to pay not less than one­ fourth of the whole purchase money within twelve months from the date thereof and by which the purchaser is entitled to vacant possession of the premises, and the premises are reasonably required by the purchaser for occupation by himself or by some person who ordinarily resides with, and is wholly or partly dependent upon, him; (m) That the premises are reasonably required by the lessor for reconstruction, demolition or removal; (n) That the lessee has become the lessee of the premises by virtue of an assignment or transfer which the lessor has not consented to or approved; or (0) That the lessee has sublet the premises or some part thereof by a sublease which has not been consented to or approved by the lessor. (p) Further prescribed grounds-notice to quit.- (i) That the lessee, without just cause or excuse has parted with possession of the premises without the consent or approval of the lessor; or 670 LANDLORD AND TENANT Vol. 9

(ii) That the lessee, without just cause or excuse not having parted with possession of the premises, has, without the consent or approval of the lessor ceased for a period exceeding three months to be a bona fide occupant of the premises; (6) In subsection five of this section, unless the contrary intention appears, "lessor" includes, where there is more than one lessor, any one or more of the lessors, and "lessee" includes, where there is more than one lessee, anyone or more of the lessees. (7) Notice to quit on a ground specified in paragraph (n) or in paragraph (0) of subsection five of this section- (a) Shall not be given- (i) Where the lease is for a fixed term-unless that term has expired; or (ii) In the case of a periodic lease-unless the period which was current at the date on which the assignment, transfer, or sublease took effect has expired; and (b) May be given whether or not the assignment, transfer, or sublease was in breach of any covenant or condition. As amended by Act of 1957, 6 Eliz. 2 No. 35, s. 7; Act of 1961, 10 Eliz. 2 No. 29, s. 9. For premises to which this Act does not apply, see s. 4A. For period of notice to quit, see ss. 42, 4A (3). As to expiry date of notice to quit, see s. 66. For courts of competent jurisdiction, see s. 48. Subsection (I)-The restrictions on recovery of possession by landlords imposed by this section apply only to prescribed premises, defined in s. 7; otherwise the ordinary rules of law apply, Natural Gas and Oil Corpor.ation Ltd. (in liquidation) v. Byrne and Boyle (1951), 68 W.N.(N.S.W.) 207. A landlord may not by re-entry dehors the Landlord and Tenant Acts recover possession of prescribed premises. The term "proceedings" in subsection (1) includes both judicial and extrajudicial proceedings, Dennis and Copley v. Eddie, [1952] V.L.R. 92; [1952] A.L.R. 1049. On the general effect of subsection (1), see note on s. 133 of the Distress Replevin and Ejectment Act, p. 621, ante. See also Ford v. Newton, [1949] St. R. Qd. 119 (agreement of tenancy of flat; by-law of local authority prohibiting letting of flat without tender of certificate of health inspector that premises were in a fit condition to be registered under the by-law; action for recovery of land and injunction; agreement of tenancy held valid and not determinable except as prescribed by this Act). This legislation does not apply to leases under the Land Acts, 1962 to 1964. See Roma Town Council v. Anderson; [1958] Qd. R. 389. In Buckby v. Speed; Ex parte Speed, [1959] Qd. R. 30 a grant by the legal owners of the freehold of prescribed premises of a concurrent lease was held to be valid. The rights given to the statutory tenant under this legisIation llire purely personal and cannot be enjoyed vicariously. Where therefore an agreement of tenancy provided that "either the tenant or his present manager" should reside in the subject house, and the manager and his fami'ly went into occupation (the tenant himself neither residing nor intending to reside in it), the Court of Appeal, allowing an appeal from a country court and applying Hiller v. United Dairies (London) Ltd., [1934] 1 K.B. 57; [1933] All E.R. Rep. 667 held that the tenant was not entitled to the protection of the Rent Acts, the policy of which was to protect a tenant who was in personal occupation of his home, and that the landlord was accordingly entitled to an order for possession, S. L. Dando Ltd. v. Hitchcock, [1954] 2 Q.B. 317; [1954] 2 All E.R. 335. Subsection (2)-A tenancy of "prescribed premises" within this Part of the Act is not terminated upon the expiry of a notice to quit unless the notice not only complies in form with the requirements of this section, but also is true in fact in that the facts, when ascertained, establish one or more of the grounds prescribed LANDLORD AND TENANT ACfS, 1948 TO 1961 s. 41 671 infra and set out in the notice, Read v. Morris, (1953) 53 S.R.(N.S.W.) 39 (F.C.). See, for example, McEwan v. Haupt, [1948] St. R. Qd. 260, infra. But the jurisdiction of justices under this section does not depend on the due determination of the tenancy by a legal notice to quit or otherwise. Thus where a notice to quit was invalid on the face of it, the Supreme Court of Victoria held that it was open to the defendant to admit that the document was effective to determine the tenancy, Cowie v. Summerfield, [1953] V.L.R. 349; [1953] A.L.R. 795, where Hudson, A.J., made absolute an order nisi to review and remitted the complaint to the court of petty sessions concerned for hearing and determination accordingly. Subsection (3)--Service of a notice to quit prescribed premises while the term is still current (e.g. a term of years), expiring on the last day of the term, does not render the notice invalid, Brittian v. Smyth, [1950] V.L.R. 247; 57 A.L.R. 583. Notice to quit should be precise and couched in terms of the statute. See Electronic Industries Ltd. v. White Trucks Pty. Ltd. (1947), 48 S.R.(N.S.W.) 102, where the Full Court held that a notice to quit was invalid because (1) it did not specify a statutory ground but mentioned two or three possible grounds, leaving it uncert'ain which of them the lessor would rely on and the lessee would have to meet, and (2) the evidence showed that one or more of the alternative grounds were misstated or falsely particularized. The notice to quit may rely on prescribed grounds, collectively or alternatively Brittian v. Smyth, supra. For an example of a notice to quit on alternative dates, see Chez Auguste Ltd. v. Cottal, [1951] 1 KB. 292 (yearly tenancy; notice construed as apt to terminate a weekly tenancy and therefore invalid, notwithstanding the alternative form in which it was couched), applying Mills v. Goff (1845),14 M. & W. 72; 153 E.R. 394. For an example of a notice to quit held a valid notice to quit the whole of the demised premises, notwithstanding that it required the lessee to quit and deliver up portion thereof, see Barry & Roberts Properties Ltd. v. Col/ins, [1950] St. R. Qd. 242; 45 Q.J.P.R. 18 (lessor company assignee of reversion a bona fide purchaser for value without notice; description of premises in notice to quit corresponding precisely with description in lease; tenant aware of defective description before executing the lease). A notice to quit that sets out any of the prescribed grounds is not invalidated by the inclusion of a ground that is not one of such grounds, such additional ground being mere surplusage and irrelevant, Laoke v. Parbury Henly & Co. Pty. Ltd., [1950] V.L.R. 94; 57 A.L.R. 254. Where a lease of premises is a partnership asset and a receiver and manager has been appointed by the court, it is necessary for the landlord to obtain leave of the court before proceeding to recover possession of the premises, Ryan v. Ryan (1951), 68 W.N.(N.S.W.) 33. Notice to quit by one of several joint tenants puts an end to the tenancy of all, Bradley v. Moorhead (1952), 52 S.R.(N.S.W.) 128; 69 W.N.(N.S.W.) 150, following Doe d. Aslin v. Summersett (1830), 1 B. & Ad. 135; 109 E.R. 738. Quare whether a lessor who holds real estate as the executor of a will must, if he gives notice to quit, give it in his capacity of executor. In Kirsner v. Hoon; Kirsner v. Orr, [1947] V.L.R. 119; [1947] A.L.R. 175, Lowe, 1., expressed an opinion in the affirmative; but in Heath v. McGrath, [1951] V.L.R. 496, at p. 500; [1951] A.L.R. 1039, Coppel, A.J., while finding it unnecessary to decide the question, expressed obiter a tent'ative doubt on that decision. A notice to quit may be bad if it does not expire at the proper time. For an example see the decision of the Court of Appeal in Bathavon Rural District Council v. Carlile, [1958] 1 All E.R. 801, where the council required delivery of possession of premises the subject of weekly tenancy by noon on the Monday, which could not be construed as meaning the first moment of that day. A lease from month to month of prescribed premises contained a term requiring the lessor to give "six months' notice if the rooms are required for our own use." The lessor's agent served a notice which required the tenant to quit and deliver up possession on a specified date thirty-four days later. The magistrate dismissed the summons and on order to review Gavan Duffy, J., discharged the order nisi, Fenton v. Cavendish Laboratories (Australasia) Ltd., [1955] V.L.R. 476. It has been held in Victoria that where there are more than one lessor all must join in the notice to quit in order to comply with the requirements of the corresponding Act. See Rogers v. Ventura, [1955] V.L.R. 139; [1955] A.L.R. 410, at p. 411, following Sweeney v. Kerr, [1946] V.L.R. 178 at p. 180; [1946] 52 A.L.R. 243, at p. 244. 672 LANDLORD AND TENANT Vol. 9

Where a tenement contains both prescribed and non-prescribed premises, a notice to quit must purport to terminate the lease of the whole premises and require the tenant to give up possession of the whole tenement. In order to be a good notice it must fulfil the requirements both of the common law and of the statute. See Russell Cowan Pty. Ltd. v. Bussell, [1956] S.R.(N.S.W.) 300. In Healy v. Southern Milk Transport Pty. Ltd., [1954] V.L.R. 448; [1954] A.L.R. 842, Dean, J., in a carefully considered judgment, after pointing out that by definition "lease" includes "every contract for letting of any prescribed premises"-which is substantially the same as the definition of "lease" in s. 7-and adding that the Act therefore treated an agreement for a lease as equivalent to a lease, held that a stipendiary magistrate sitting as a court of petty sessions has power to determine whether or not there is an enforceable agreement for a tenancy and is bound to give effect to an agreement for a lease or for a renewal of a lease proved by the respondent. An agreement for a lease gave the lessee an option of renewal, exercisable within a specified period before the expiration of the term and only if the lessee had duly observed and performed his obligations thereunder. The lessee purported to exercise the option at a time when he was in arrear with the rent, but sought to remedy the breach by paying all the rent before the term expired. Dean, J., made absolute an order to review the magistrate's decision, holding that the option had not been validly exercised, Healy v. Southern Milk Transport Pty. Ltd., supra. In order to determine whether an agreement creates a tenancy or merely confers a personal privilege with no interest in the land, the court looks at the intention of the parties and, in the absence of a document evidencing their intention and of any precise account of their conversation in the course of which the agreement was made, will have rega'rd to the circumstances in which it was made and the conduct of the parties thereafter. The fact that the landlord continued to reside on the premises raises a presumption that a person occupying the other part of them is a lodger, not a tenant, Varella v. Marsicovetere, [1954] V.L.R. 550; [1954] A.L.R. 853. A purchaser of land who has merely agreed to buy land and has not acquired the legal estate is not ipso facto entitled to give notice to quit to a person who became a lessee of the vendor. Gilshenan v. Hancox, [1958] Qd. R. Ill; 52 Q.J.P.R. 121, where the Full Court allowing an appeal against an order of a stipendiary magistrate who had adjudged the purchasers (man and wife) entitled to possession of the subject premises, held that there was no evidence sufficient to base a finding of the existence of the relation of landlord and tenant as a result either of the agreement or of estoppel. On the question of the day of the week upon which in a weekly tenancy the notice to quit should expire see Rowstoll v. Sydney Coullty Council (1954), 55 S.R.(N.S.W.) 37 (H.C.A.). See also s. 66. A landlord having died after a magistrate had found in his favour and adjudged him entitled to possession of the subject premises and ordered that a warrant issue putting him in possession, but stayed execution of the warrant for some five months, his executor commenced fresh proceedings before a magistrate for an order for recovery of the same premises. The magistrate who heard the fresh proceedings admitted the judgment of the first magistrate and held that it created an estoppel against the lessee. On a stated case the court, upholding the magistrate, held that although on the death of the lessor the proceedings abated, the abatement after judgment did not prevent the judgment from operating either as res judicata or otherwise raising estoppels. Upon abatement the proceedings did not become null and void, but remained effective for what they were worth, although no further step could be taken in them. The judgment was binding and conclusive as between the parties to it and their privies on the issue actually determined by it, namely that the tenancy had been determined and that the lessor had become entitled to possession as from the day on which the notice to quit required him to deliver up possession. As to that issue the judgment was res judicata and the fact that an appeal against it was commenced did not affect the conclusive nature of it, Scruby v. Hoggan, [1955] S.R.(N.S.W.) 2. In Marx v. Ferlazzo (1956), 73 W.N.(N.S.W.) 73, where a lessor had given formal evidence proving the ground of a notice to quit but not hardship, and sought at the conclusion of the lessee's evidence of hardship to give evidence of his hardship, a magistrate rejected this evidence on the ground that the lessor was attempting to split his case. It was held by the Full Court, on appeal, that the magistrate was in error. LANDLORD AND TENANT ACTS. 1948 TO 1961 s.41 673

The burde~ on a complainant lessor of establishing his case is that appropriate to ordinary civil proceedings, Brauer v. Evans (1956), 73 W.N.(N.S.W.) 291. Subsection (5)-A lease is not terminated by the occurrence of one of the gr~)Unds . set out. in this subsection; it continues until a notice to quit given under Ihls sectIOn expIres, Majala Ply. LId. v. Elias, [1949] V.L.R. 104; 57 A.L.R. 192. Paragraph (a): In DellenlY v. Pellow, [1951] 2 All E.R. 716; [1951] 2 T.L.R. 733, the Court of Appeal held that where the landlord shows that at the commence­ ment of the proceedings there was rent in arrear jurisdiction arises under the ~orresponding English provision; and that the only effect of payment of rent mto court before judgment was that it would not be reasonable for the judge to make an order, although in the instant case it was reasonable to make an order for possession. As to the effect of the payment of arrears of rent into court, see Dellenty v. Pellow, supra. In McKinnon v. Portelli (1960), 77 W.N.(N.S.W.) 49, where a notice to quit was issued on the ground contained in s. 62 (5) (a) of the New South Wales Landlord and Tenant (Amendment) Act 1948-1958, namely that there had been a failure to pay rent in respect of a period of not less than twenty-eight days and the condition in the lease provided for entry and forfeiture for non-payment of rent for seven days it was held that the notice to quit not claiming a right to possession on the ground of forfeiture, failed to qualify as being equivalent to an action of ejectment, and there was no ground on which the court could grant an injunction to restrain proceedings for recovery of possession of prescribed premises pending appeal against dismissal of suit for relief against forfeiture. In Sleventon v. Grech, [1956] V.L.R. 472, it was held that a magistrate had properly exe,rcised his discretion in refusing to make an order for recovery of possession in a case where the landlord refused to accept rent. Paragraph (b): The onus is on the lessor to prove not only the lessee's failure to perform or observe the particular term or condition in question but also the fact that he (the lessor) has not waived or excused the performance of the term or condition in question, Gargaro v. Moore, [1948] V.L.R. 365; [1948] 2 A.L.R. 541; 43 Q.J.P. 100. Where the indenture contained a clause providing for forfeiture upon breach thereof and a further clause providing that upon breach of any covenant by the lessee the lessor might determine the term by notice in writing and that from that date the lessee should hold the subject premises as a weekly tenant at a stipulated rent, the Full Court, following and applying Finney Isles & Co. Ltd. v. Pelling, [1950] St. R. Qd. 128; 44 Q.J.P.R. 137, held that a notice to quit on the ground that the lessee had failed to perform or observe a specified covenant was equivalent to actual re-entry, Deegan v. Stewart, [1954] St. R. Qd. 90; 48 Q.J.P.R. 113. The limits of this provision were considered and stated in Young v. Oliver, r1956] V.L.R. 466; [1956] A.L.R. 1020. In that case the landlord sought possession of the subject premises on the statutory ground (inter alia) of which this provision is an extract transcript. The particular breaches enumerated in the notice to quit had reference to a term or condition of the lease which by the indenture was expressed to arise "at the end or sooner determination of the term" thereby created. The lessee continued in occupation after the term of the lease had expired without the landlord's consent and against his wishes. Lowe, J., upholding an appeal by way of order to review and applying Garg,aro v. Moore, [1948] V.L.R. 365; [1948] 2 A.L.R. 541, held that, even if it were assumed that the lessee's obligation was caHied over into the statutory tenancy, no breach of that obligation could have existed at the date when the notice to quit was given, for the reason that there could be no breach until after the time specified in the notice to quit had expired. See also Macquarie Investments Pty. Ltd. v. Fowler, [1961] N.S.W.R. 369 and Ex parte Edward Robert Dixon; Re Nelson, [1961] N.S.W.R. 570. In Stoyles v. Job (1956),73 W.N.(N.S.W.) 41, it was held that the occupation of the premises by the lessee's two adult sons and daughter and by another person permitted by them to occupy part of the premises for an occupation fee was not a breach of the lessee's covenant not to assign, sublet or part with possession. See also Penn v. Gatenex Co. Ltd., [1958] 1 All E.R. 712. Paragraph (c): As to a tenant's common law obligation to use premises in a tenant-like manner, see Warren v. Keen, [1953] 2 All E.R. 1118. Paragraph (d): See hereon Clarey v. Principal and Council of Women's College, [1953] A.L.R. 850; [1954] St. R. Qd. 57. In that case the lessors, who occupied part of a dwelling-house (an old weatherboard building in which noises 22 674 LANDLORD AND TENANT Vol. 9 were very audible), sought to recover possession of the rest of the premises, which was occupied by students who by nocturnal noises-walking about, moving chairs along the fioor, having baths, talking and laughing and preparing for bed­ caused the lessors considerable discomfort. The High Court applying dicta in Jones v. Pritchard, [1908] 1 Ch. 630, at p. 636; [1908-10] All E.R. Rep. 80, and in Ball v. Ray (1873), L.R. 8 Ch. App. 467, at pp. 469, 470, dismissed an appeal by the lessors from the Full Court, which had made absolute an order to review an order made by a stipendiary magistrate. "Nuisance" and "annoyance" were defined by Sholl, J., in Downie v. Taylor. [1954] V.L.R. 603, at pp. 611-612; [1954] A.L.R. 1047, at pp. 1055-1056, an action in which the plaintiff claimed as against the defendants possession of portion of a dwelling-house. The learned judge expressed the opinion that "nuisance" (as used in cognate legislation) may be limited to nuisance in the legal sense; "annoyance," he thought, meant "a source of irritation or resentment, to a substantial degree, to a reasonably minded proprietor, boarder or lodger," such definitions being subject, of course, to the qualification that no one can reasonably complain of conduct which is reasonably incidental to the express purpose for which he provided the lodging or the board and lodging. Paragraph (e): In order to establish this ground it must be proved (1) that there has been a deliberate use of the premises for an illegal purpose for which the lessee is responsible, whether he himself makes use of the premises for that purpose or allows someone else to do so, and (2) that the offence arose out of that use as being really incidental thereto, Majala Pty. Ltd. v. Elias, [1949] V.L.R. 104. In that case the premises, known as the Balkan Club, were used as a sly grog shop. The Supreme Court of New South Wales has held that the use of prescribed premises for hiding a portion of goods which the son of the lessee had been con­ victed of stealing did not, without morc, constitute an offence arising out of the use of the premises for an illegal purpose within the meaning of the corresponding section. Patrick v. Kelly, (1954), W.N.eN.S.W.) III. As to condonation by a tenant of his licensee's illegal activities, see Boulton v. Bittar (1955),72 W.N.(N.SW.) 280. Paragraph (f): In McEwan v. Haupt, [1948] St. R. Qd. 260, a notice to quit was held invalid by the Full Court on the ground that it gave no particulars either of the lessor's agreement to let the premises or of the other steps he had taken as a result of which he would be seriously prejudiced if he could not obtain possession. Paragraph (g): The word "required" here means "demanded" or "claimed"; it does not mean "needed", Kiely v. Loose, [1948] V.L.R. 181, at p. 183. The occupation here contemplated is occupation as a home; the protection here given to the owner does not extend to a second house, a mere pied-a-terre, which he finds it convenient to visit occasionally. See the judgment of Evershed, M. R., in Beck v. Scholz, [1953] 1 Q.B. 570; [1953] 1 All E.R. 814; [1953] 2 W.L.R. 651. An owner kept out of his own home by this legislation does not approach a court of petty sessions, in order to recover possession of it, as a suppliant. Harriso/l v. Mansfield, [1953] V.L.R. 399, at p. 405; [1953] A.L.R. 676, at p. 681. A notice to quit on this ground is valid if at the time of giving it the lessor had a bona fide and reasonable expectation that he would need the premises for his own occupation at the time the notice to quit expired, De Marco v. Ellis, [1949] V.L.R. 97, at p. 99. If the expectation, though unfulfilled at the time of the hearing, is likely to be fulfilled, the hearing should be adjourned. Where the meaning of a document has to be judicially determined, evidence is admissible for the purpose of ascertaining the intention indicated by the words used in the circumstances, Englander v. Mussell, [1950] V.L.R. 442, at p. 445. On the sufficiency of a notice to quit hereunder, see Arnold v. Wood, [1948J V.L.R. 261; 43 Q.J.P. 27; Finney Isles & Co. Ltd. v. Manteit and Malouf, [1949] St. R. Qd. 249; Barry & Roberts Properties Ltd. v. Collins, supra. See also notes on s. 2 of the Summary Ejectment Act of 1867, p. 749. post. The paragraph contains two grounds. See Duggan v. Little, Ex parte Little (1951),45 Q.J.P.R. 74. This paragraph states two separate and distinct grounds which are mutually exclusive. The words "for occupation by himself" (in the first ground) include all cases where possession of the whole of the premises is reasonably claimed and desired by the lessor in order that he may occupy, either alone or with others, the whole or any part of the premises. The second (alternative) ground does no~ cover any case in which the lessor is merely one of the persons for whose occupatIon the LANDLORD AND TEN/\NT ACTS, 1948 TO 1961 s.41 675 premises are claimed, Maynard v. Silcock, [1954] V.L.R. 423; [1954] A.L.R. 714, where Smith, J., applied Kiely v. Loose [1948] V.L.R. 181; [1948] A.L.R. 47, and Arnold v. Wood, [1948] V.L.R. 261; [1948] A.L.R. 313. In Maynard's case, supra, the notice to quit demanded possession on both these grounds. In Bellas and Paraskevas, [1954] Q.W.N. 59; 49 Q.J.P.R. 15, the notice set out the entire clause disjunctively, without supplying particulars sufficient to inform the lessee of the case he had to meet. In both cases the court held that the notice to quit was invalid and set it aside. The Victorian case was remitted to the court of petty sessions for rehearing; in the Queensland case the warrant was quashed. Tn Tassoni v. Steve, Ex parte Steve, [1956] St. R. Qd. 72; 51 Q.J.P.R. 33, where the landlord required the tenant to deliver up possession on the grounds (1) "that the premises being a dwelling-house are reasonably required by me for occupation by myself" and (2) "that the premises being a dwelling-house are reasonably required by me for occupation by my wife and/or my children", the Full Court held that ground (2) was mere surplusage and did not invalidate the whole notice to quit of which ground (1) was a valid ground. In Pocock v. Barry, [1954] N.Z.L.R. 228, the expression "reasonably required" in similar legislation was judicially construed as meaning reasonably demanded or claimed, the question in each case being as to the reasonableness of the ground. Compare Weston v. McConkey, (1957) 74 W.N.(N.S.W.) 391; 51 Q.J.P. 129. The occupation contemplated by this provision must be an occupation as to which it can be shown either that there is reasonable need for it, already existing or on the point of arising,at the date when the notice is given, or at least that there is an honest and reasonable expectation, at the time of the notice, that there will be a reasonable need for it at or about the time the notice to quit will expire, Brown v. Lusk, [1956] V.L.R. 285, at pp. 289, 290; [1956] A.L.R. 827, discussing Kiely v. Loose, supra, and De Marco v. Ellis, [1949] V.L.R. 97; [1949] A.L.R. 452. The FuII Court has held that the lessor need not require the premises for his own personal occupation in the sense of residence; that it is sufficient if he requires them for his use in any lawful fashion, Tassoni v. Stel'e, Ex parte Steve, [1956] St. R. Qd. 72; 51 Q.1.P.R. 331. See also Conaghan v. Gill; Ex parte Gill, [1956] St. R. Qd. 86, and Ex parte O'Connell; Re Perpetual Tmstee Co. Ltd., [1959] 76 W.N.(N.S.W.) 519. Semble where there is more than one lessor, notice to quit by one lessor on the ground that the premises are required for his occupation is insufficient. Compare Fade v. Taylor, [1954] V.L.R. 696; [1955] A.L.R. 43. The words "reasonably required for occupation by the lessor" were interpreted by the Full Court in Black v. Hopley, Ex parte Hopley, [1957] Q.W.N. 4, as includ­ ing reconstruction incidental to occupation. In that case the subject premises were a small shop of which the lessors (who themselves occupied a contiguous shop) sought possession for the purpose of extending their cake business, and of which they intended to provide the common wall with intercommunicating arches. See Morris v. English, Scottish and Australian Bank Ltd., [1958] A.L.R. 151, a decision of the High Court of Australia, whose joint judgment reprinted in 52 Q.J.P. 77 semble, has overruled Black v. Hopley, Ex parte Hopley (1956), 50 Q.J.P.R. 133. See also Perivuluris v. Putites, [1959] 76 W.N.(N.S.W.) 709. Paragraph (h): See Bentley v. Benhow, [1957] A.L.R. 1158. Paragraph (i): In Hardy v. Zirkler, [1952] V.L.R. 182; [1952] A.L.R. 350, Barry, J., allowing an appeal from a magistrate, held that an executor (who with the testator was a tenant in common of an equal undivided half share of the land) was a trustee within the corresponding ground under the Landlord and Tenant Act of Victoria. See Crooks National Stores Pty. Ltd. v. Collie (1957), 31 A.L.I. 833. Paragraph (k): In Murdoch v. D'E/ton, [1956] V.L.R. 347, Gavan Duffy, J., held, disagreeing with Burke v. Bates (1950), 67 W.N.(N.S.W.) 103, that there must be some specific employee for whom the premises are required. Paragraph (I): Payment of the balance of purchase money and the giving of possession may be concurrent conditions, but it is not necessary that they should be. Vacant possession refers to the quality of the possession and means actual physical possession, as distinct from constructive possession by receipt of the rents and profits, Hughes v. Yuen (No.2), [1948] V.L.R. 21, at p. 23. On "occupation," see Williams v. Coulthard [1948] S.A.S.R. 183; Brittian v. Smyth, [1950] V.L.R. 247; Harris v. Point (1952), 69 W.N.(N.S.W.) 334. 676 LANDLORD AND TENANT Vol. 9

Semble the ground set forth in this clause is established if at the time the notice to quit was given the lessor had a bona fide and reasonable belief that he would require the premises at the expiration of the period specified in the notice. See the judgment of Gavan Duffy, J., in Guest v. Roberts, [1955] V.L.R. 28 at p. 33: [1955] A.L.R. 250 at p. 254. See also Preston Ice and Cool Stores Pty. Ltd. Y. Hawkins, [1955] V.L.R. 89; [1955] A.L.R. 371, where Smith, J., found that there was no evidence that occupation of any part of the premises was contemplated, whereas what was in question was actual occupation, not possession in law. Contrast the facts in Londoll alld Lallcashire fllSllrallce Co. Ltd. V. Ahbol/, [19551 S.R.(N.S.w.) 359. Paragraph (m): On "reconstruction", see Shiell Y. Symons, [1951] S.A.S.R. 82: Grocery and General Merchants Ltd. v. LOllgwear Illdustries Pty. Ltd. (1952). 69 W.N.(N.S.W.) 277. Marriott Y. Palmer, [1955] Q.W.N. 64; 49 Q.J.P.R. 111, is an example of failure to prove determination of a lease which contained a clause (3) that provided for suspension or reduction of rent in the event of the premises being destroyed or damaged by inevitable accident so as to be unfit for occupation or use. Particulars supplied set out that vacant possession of the building in question, which was occupied as a garage and had been damaged by a cyclone, was required by the lessors to enable it to be taken down in accordance with a notice received from the local authority stating that it had become a dangerOlls structure ~tnd requiring them within sixty days to repair or take it down. The Full Court, holding that clause 3 was operative, set aside the stipendiary magistrate's order for recovery of possession and the relative warrant, but made no order as to costs. For an example of the distinction between "reconstruction" in this clause and recomtruction incidental to occupation, see Black v. !lopi!',,: Ex parte Hople\,. fl9571 QW.N.4. The word "required" in this clause means "claimed" or "demanded" rather than "needed". The question whether the reconstruction could be carried out with the lessee in possession is relevant, if at all, to the question of hardship, Western v. McColikey (1957),74 W.NJN.S.W.) 391; 51 Q.J.P. 129: Compare Pocock v. HI/In, [1954] N.Z.L.R. 228. See Morris v. English, Scottish and A lIstralian Bank Ltd .. [1958] A.L.R. 151: McKenna v. Porter Motors Ltd., [1956] A.C. 688; [1956] 3 All E.R. 262: Raine v. Saxlon, [1961] N.S.W.R. 972. The term "reconstruction" includes the case of the demolition of an existing structure and the erection of a new building on the site. Gcorges Frccholds Pty. Ltd. v. Spencer; Ex parte Spencer, [1960] Q.W.N. 31. "Demolition" does not here mean the commencement of the physical \\ork of demolition, and the ground does not mean that the premises must be required for immediate demolition. Munro v. Lambs Building Ply. Ltd., [1961] N.S.W.R. 511. As to reasonable requirement and hardship see Fearon \'. Farm Pred/!eI\' C o-operalil'e (W ellingtoll) Limited, [1960] N.Z.L.R. 121. See also Peril'o/aris v. Pafites, [1959] 76 W.N.(N.S.W.) 709. "Demolition" does not include removal of a house as an undamaged whole, Nelson Y. Healy, [1948] V.L.R. 415; [1949] A.L.R. 16. Paragraph (n): The mere facts that a person has entered into possession of the premises and paid rent are not of themselves sufficient to found an estoppel that he is an assignee of an existing lease, Mitchell v. Catlin, [1948] V.L.R. 36: [1948] 2 A.L.R. 518; 43 Q.J.P. 40. The assignment must be in writing. See ShaJl' v. Port, [1953] V.L.R. 386 where, although there was evidence sufficient (apart from statutory requirements) to enable the magistrate to infer an assignment, Martin, J., made absolute on that ground an order to review a decision given in favour of the defendant. On the nature of evidence giving rise to an inference of the landlord's consent or approval, see Booton v. Clayton (1948), 48 S.R.(N.S.W.) 336. See also Wilson v. Jolly (1948), 48 S.R.(N.S.W.), 460; Archos v. More, [1949] Q.W.N. 39: 43 Q.J.P.R 159; Paller v. Boyce, [1949] St. R. Qd. 286.

On the effect of acceptance of rent from the transferee, see O'Dea y. Bougill (1950), 68 W.N.(N.S.W.) 38. LANDLORD AND TENANT ACTS, 1948 TO 1961 s.41 677

Semble an assignment or transfer which the lessor has not consented to or approved is a ground for giving a notice to quit whether there is or is not a covenant against assigning contained in the lease. Compare and contrast Massart v. Blight (1951), 25 A.L.J. 87 (H.C.A.). See also Regional Properties Ltd. v. Frankenschwerth, [1951] K.B. 631; [1951] All E.R. 178. The parties to a lease cannot curtail the operation of this provision by stipulating circumstances in which the lessor's refusal should not be deemed unreasonable. Compare Re Smith's Lease: Smith v. Richards, [1951] 1 All E.R. 346. On the limits within which a lessor's claim to possession under this provision cannot be defeated by an allegation of "special circumstances", see Burke Investments Pty. Ltd. v. D-Jay's Pty. Ltd., [1952] V.L.R. 307; [1952] A.L.R. 559. The assignment contemplated by this clause is one that affects the rights of the lessor. Where therefore a lease of business premises was an asset in a partnership which was eventually dissolved and thereafter one of the partners, to whom the retiring partner had assigned all his share in the assets of the firm, remained in sole occupation of the premises, carrying on the business upon his own account, it was held that the landlord, notwithstanding that he had not consented to the assignment, was not entitled to recover possession on this ground, since the assignment was one that affected only the rights of the lessees inter se, each of whom remained liable on the covenants of the lease: and it was further held that there had been no subletting. See Cook v. Rowe, [19'54] V.L.R. 309; [1954] A.L.R. 636. On the question of the reasonableness of the withholding of consent d. POlliter v. Bigham, [1955] V.L.R. 326; [1955] A.L.R. 841. Paragraph (0): This ground is available whether consent to a subletting is required by the agreement or not, Regional Properties Ltd. v. Frankenscllll'erfh, [1951] K.B. 631: [1951] I All E.R. 178 (C.A.). See also Re Giles and McCollachy's Lease, [1953] V.L.R. 373; [1953] A.L.R. 567. where Dean, J., dismissed a summons wherein the lessee sought a declaration that the lessor was unreasonably withholding her consent to a proposed subletting. For an example of waiver by acceptance of rent after breach of covenant against subletting and against use otherwise than as a private dwelling-house, see Downie v. Turner, [1951] I All E.R. 415 (C.A.). In Hyde v. Pimley, [1952] 2 Q.B. 506; [1952] 2 All E.R. 102, Evershed, M.R., in delivering the judgment of the Court of Appeal distinguished between consent to an act and waiver of its consequences and held that the conduct of the landlord in accepting rent for four and a-half months with clear knowledge of the subletting, which the county court judge rightly held to amount to a waiver of the covenant. must inevi~ably abo amount to a consent to the subletting. A va.riance between the particulars stated in the notice to quit and the evidence adduced m support of an application for ejectment based on this ground is not fa.tal. to the validity of the notice to quit, since ordinarily the facts are peculiarly wlthm the knowledge of the respondent, who is not likely to be prejudiced by such variance, Looke v. Parhury Henly & Co. Pty. LId., [1950] V.L.R. 94; 57 A.L.R. 254. On the distinction between a sublease and a license restricting the use of the prescribed premises and reserving the right of exclusive possession to the lessee, see Copley v. Newmark, [1950] V.L.R. 17. Semble a sublease of part of premises let as a private dwelling-house without the consent of the lessor would be a subletting within this paragraph. Compare Dobbs v. Lillford, [1952] 2 All E.R. 827 (C.A.), where the tenant sublet the top 1100r as a private residence. Where it is uncertain whether a document executed by a lessor and a third party created a sublease or an assignment, evidence is admissible to show the intention of the parties, Lane v. Capellari (1951), 68 W.N.(N.S.W.) 1. See also Robinson v. HlIdson (1951), 68 W.N.(N.S.W.) 9 (ambiguous document; evidence of surrounding circumstances and what the parties did held admissible). The question of hardship does not arise for determination where the assign­ ment or the subletting was unauthorised. See Phillips v. Forsyth, [1952] V.L.R. 344; [1953] A.L.R. 570. Subsection (7) (b)-See Archos v. More, [1949] Q.W.N. 39; 43 Q.J.P.R. 159. 678 LANDLORD AND TENANT Vol. 9

42. Period of notice to quit. ( 1) The period for which notice to quit shall be given shall be not less than a period of seven days, together with an additional seven days for each completed period of six months of occupation. (2) Nothing in subsection one of this section shall­ (a) Require the giving of notice to quit for- (i) A period exceeding fourteen days if the notice is given on the grounds specified in paragraph (c), (d), (e), or (f) of subsection five of section forty-one of this Act and not on any other ground; or (ii) A period exceeding thirty days if the notice is given on any other ground; or (iii) In the case of shared accommodation-a period exceeding fourteen days; or (b) Allow the giving of notice to quit for a period shorter than the period which, but for this section, would be required. See also s. 4A (3). As to expiry date of notice to quit, see s. 66. In the question of length of notice where upon the expiration of a tenancy for one year the tenant has held over, see Adler v. Blackmail, [1952] 2 All E.R. 41. In that case the agreement provided for a rent of £3 a week, and the landlord gave a week's notice, which the tenant accepted without question. In an action for damages, possession and mesne profits Omedor, J., after reviewing the authorities, gave judgment for the plaintiff landlord. In Kodak (Australasi,a) Pty. Ltd. v. Hally; Ex parte Hally, [1960] Qd. R. 452 "six months" notice was held to be insufficient to determine a yearly tenancy. In cases where they are applicable, the common law rules as to the day on which a notice to quit must expire are not affected by s. 42, A mad v. Grallt (1947), 74 C.L.R. 327. But see s. 66. The period of days to be given is not a period of clear days, Dredge v. Taylor (1950), 67 W.N.(N.S.W.) 133. 43. Notice to quit not to be given within six months after determination. A lessor shall not- (i) After the lessee has made an application for a determination; (ii) After the passing of this Act, if the lessee had made an application for a determination under the National Security (Landlord and Tenant) Regulations of the Commonwealth, or if the lessor had received from the Commonwealth Rent Controller or his delegate for this State, notice of his intention to determine the fair rent of his own motion under those regulations, except with the consent of the court having jurisdiction to hear and determine the matter of the recovery of possession by the lessor of the prescribed premises concerned or for the ejectment of the lessee therefrom, give a notice to quit on any ground specified in paragraphs (f), (g), (h), (i), (j), (k), or (1) of subsection five of section forty-one of this Act until after the expiration of six months after the making of the determina­ tion on the application or in pursuance of the notice, but if a determina­ tion applied for, whether under this Act or under the said Commonwealth Regulations, has not been made within a period of six months after the date of the application- (a) By the Court in the case of an application under this Act; LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.42-46 679

(b) Under the said Regulations of the Commonwealth, or by the Court pursuant to its power to make under this Act determinations applied for under those Regulations and not made thereunder before the expiration thereof, such a notice to quit may be given upon the expiration of that period, or if, in the case of notice of intention as aforesaid to make a determina­ tion, the Controller or his delegate had not made that determination prior to the expiration of the said Regulations, such a notice to quit may be given at any time after the passing of this Act. Determinations are made under s. 15. As to notices to quit after abortive eviction proceedings, see s. 47. As to applications to the court for consent, see rule 16. p. 703, post. A similar provision in the Landlord and Tenant Act 1948 of Victoria has been interpreted by Sholl, J., in Gellion v. Leonard, [1950] V.L.R. 515; 57 A.L.R. 965. 44. Notice to quit where dwelling-house sold. (1) A person who becomes the lessor of any dwelling-house by purchase thereof shall not, within a period of six months after the date of the agreement for the purchase, give a notice to quit on the ground specified in paragraph (g) of subsection five of section forty-one of this Act to any person who was a lessec of the dwelling-house at the date of the agreemcnt for the purchase. (2) A lessor of any dwelling-house shall not give a notice to quit on the ground specified in paragraph (1) of subsection five of section forty-one of this Act to any person who was a lessee of that dwelling­ house at the date of the agreement referred to in that paragraph within a period of six months after the date of the agreement. On the scope of subsection (1), see Kirsch v. A uhf, [1949] V.L.R. 324, at p. 326. "By purchase" has here its popular meaning. It envisages acquisition of a dwelling-house by way of bargain and sale for money or other valuable consideration, Hollingsworth v. Lee, [1949] V.L.R. 140, at p. 144. See also Kirsch v. Auhl, supra, where a lease subject to the rights of tenant in possession was held not within these provisions, and Cook v. Evans (1948), 49 S.R.(N.S.W.) 83, where the meaning of "purchase" was considered by the Full Court of New South Wales. For an example of the precluding effect of this section, see Cox v. Kelly, [1951] V.L.R.33. The restriction imposed by subsection (1) relates only to cases where the new lessor becomes a lessor "by purchase", Powell v. Cleland, [1947] 2 All E.R. 672. As to co-lessors, see Nelson-Hauer v. CaIman (1954), 73 W.N.(N.S.W.) 449. 45. Notice to specify ground. A notice to quit shall specify the ground relied upon and shall give the particulars thereof and, in the proceedings, the lessor shall not except by leave of the Court be entitled to rely upon any ground not so specified or of which particulars have not been given. As amended by Act of 1957,6 Eliz. 2 No. 35, s. 8. For grounds, see s. 41 (5). For examples of sufficiency of particulars, See To Soo Hing v. Patty (1951), 45 Q.J .P.R. 1 (H.C.A.); Duggan v. Little; Ex parte Little (1951), 45 Q.J.P.R. 74, Frauen/elder v. Franzi, [1944] A.L.R. 326; Frier v. O'Rourke, [1945] V.L.R. 107; Watson v. Riding; Ex parte Riding, [1945] St. R. Qd. 75. A notice to quit must be read as a whole and the grounds and particulars thereof read together so that any uncertainty in the grounds may be cured by the furnishing of adequate particulars. The particulars must be reasonably sufficient to bring to the mind of the lessee the ground relied on, Arnold v. Wood, [1948] V.L.R.261. See also Bellas alld Paraskevas v. Ryall; Ex parte Ryall, [1954] Q.W.N. 59. 46. Notice to quit to terminate lease. A notice to quit given in accordance with the provisions of section forty-one of this Act shall, if the tenancy in respect of which the notice was given has not otherwise 680 LANDLORD AND TENANT Vol. 9

terminated, operate so as to terminate the tenancy of the premises at the expiration of the period specified in the notice, but nothing in this section shall operate so as to determine any tenancy before the date on which it would have terminated if this section had not been enacted. In Finney, Isles & Co. Ltd. v. Pel/ing Estate; Ex parte Pellillg Estate, [1950] SI. R. Qd. 128, the Full Court held that, where there has been a breach of a condition in a lease for a fixed term involving forfeiture, a notice to quit may be given notwithstanding that the lease has not expired by effiuxion of time, and that service thereof terminates the tenancy except where the lessor relies on the statutory ground that the premises are required for occupation either under s. 41 (5) (g) or under (h) or (i). The Court further held that, since notice to quit is an unequivocal act indicating an intention to determine the tenancy, a second notice to quit could not have the effect of restoring the lease and amount to a waiver. Semble, that after a valid notice to quit has been served and has expired, a tenancy is brought to an end by virtue of this section, but nevertheless the lessee remains protected against dispossession by the lessor, whether by peaceable re-entry or otherwise, unless and until an order for possession is made by the court under the Act, and the term for execution of the order expires, the tenant being meanwhile liable to pay the rent and observe the other obligations of the tenancy so far as applicable, Anderson v. Bowles, [1951] A.L.R. 913; Andrews v. Hogan [1952] A.L.R. 601. Compare Krupa v. Zacabag Pty. Ltd. (1950), 50 S.R.(N.S.W.) 304. 47. Notice to quit after failure of eviction proceedings. (1) Where a lessor has taken proceedings in any court of competent jurisdiction to recover possession of any prescribed premises from the lessee or for the ejectment of the lessee therefrom and that court has (whether before or after the passing of this Act) refused to make an order in favour of the lessor, the lessor shall not give to the lessee any notice to quit (whether on the same ground as a previous notice to quit or on some other ground) within six months after the decision of the court unless he has first obtained the leave of a court having jurisdiction to hear and determine the matter of the recovery of possession by him of the prescribed premises concerned or for the ejectment of the lessee therefrom. (2) Where, under subsection one of this section, such a court refuses to make an order in favour of a lessor it may, at the same time, grant leave for the purposes of this section. For an example of a magistrate's failure to exercise his discretion judicially upon an application for leave to give the tenant a fresh notice to quit, see Dunworth v. Garland; Ex parte Dunworth, [1952] Q.W.N. 5; 46 Q.J.P.R. 26. The corresponding provision of the Victorian statute was interpreted by Pape, J., in Knight v. Henderson, [1958] V.R. 134; [1958] A.L.R. 504 (reprinted in 52 Q.1.P.R. 71), who followed Dunworth v. Garland, supra. Except with the consent of the court, a notice to quit may not be given within six months of the making of a determination, s. 43. 48. Courts of competent jurisdiction. For the purposes of section forty­ one of this Act- (a) Only a court of petty sessions constituted by a stipendiary magistrate or an acting stipendiary magistrate sitting alone shall be a court of competent jurisdiction; and (b) The "Summary Ejectment Act of 1867" shall, subject to all necessary adaptations, apply to and with respect to all proceedings for the termination of tenancies, the recovery of possession of premises, and the ejectment of lessees therefrom. Substituted by Act of 1948, 12 Geo. 6 No. 46, s. 12. Act referred to: Summary Ejectment Act of 1867, p. 749, post. LANDLORD AND TENANT ACTS, 1948 TO J961 ss.46·49 681

Courts of Petty Sessions are now Magistrates Courts, Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. The provisions of this legislation to tenancies at will, Grossett v. Ireland. [1950] S1. R. Qd. 8; 44 Q.J.P.R. 79. The Supreme Court has no jurisdiction to entertain an action to recover possession of land so held, ibid. A notice to quit expressed to require the tenant to deliver up possession of the subject premises "within thirty days after service thereof" was held to mean that the landlord had given the tenant (i) notice to quit for the last day, which became the specified day, and also (ii) an option to deliver up possession on or before that day. See Roche v. Norman; Ex parte Norman, [1958] Q.W.N. 11; 52 Q.1.P.R. 69. See R. v. Melbourne Justices; Ex parte Warburton Franki (Melbourne) Ltd.. [1958] V.R. 84; [1958] A.L.R. 599. See also R. v. Melbourne Justices; Ex parte Warburton Franki (Melbourne) Ltd., (No.2), 1958 V.R. 254, where Herring, C.J., held that a similar provision in the Landlord and Tenant (Control) Act, 1957 of Victoria does not operate to take away the power of the Supreme Court to allow costs in proceedings in mandamus.

49. Court to consider hardship. (1) On the hearing of any proceedings by a lessor for an order for the recovery of possession of any prescribed premises or for the ejectment of the lessee therefrom (whether the proceedings were commenced before or after the passing of this Act) the court having jurisdiction in the matter shall take into consideration, in addition to all other relevant matters- (a) Any hardship which would be caused to the lessee or any other person by the making of the order; (b) Any hardship which would be caused to the lessor or any other person by the refusal of the Court to make the order; and (c) Where the application is made on anyone or more of the grounds specified in paragraphs (g), (h), (i), (j), (k), (I), and (m) of subsection five of section forty-one of this Act­ whether reasonably suitable alternative accommodation in lieu of the prescribed premises is, or has been since the date upon which notice to quit was given, available for the occupation of the person occupying the prescribed premises or for the occupation of the lessor or other person by whom the prescribed premises would be occupied if the order were made, and may, in its discretion, make the order or may, on such conditions (if any) as it thinks fit, refuse to make the order notwithstanding that one or more of the prescribed grounds has been established. (2) Where the application is made on either of the grounds specified in paragraphs (n) and (0) of subsection five of section forty­ one of this Act, the court of competent jurisdiction shall not refuse, in the exercise of the discretion vested in it by subsection one of this section, to make the order unless it is satisfied- (a) That special circumstances exist by reason of which the order should not be made; or (b) Without limiting the generality of the last preceding para­ graph, in a case where the ground specified in the said paragraph (0) applies, that the subletting was in the course of a busine~s of subletting carried on by the lessee. 682 LANDLORD AND TENANT Vol. 9

(3) Where the application is made on either of the grounds specified in paragraphs (n) and (0) of subsection five of section forty-one of this Act in respect of- (a) The premises of any lodging-house or boarding-house; or (b) Any premises leased by the lessor for the purpose of enabling the lessee to carryon thereon the business of subletting shared accommodation, the court of competent jurisdiction shall, notwithstanding the discretion vested in it by subsection one of this section, refuse to make the order unless it is satisfied- (i) That, having been requested to consent to or approve of an assignment or transfer of the lease or a sublease of those premises, the lessor had just cause for refusing that consent or approval; or (ii) That the lessor, not having just cause for refusing his consent or approval as aforesaid, has offered to pay to the lessee a fair and reasonable price for the lease (including the good­ will of the business carried on by the lessee), but in this case the Court shall suspend the execution of the order until the lessor has paid that price to the lessee. A court of competent jurisdiction for the purposes of section forty­ one of this Act may, upon application in that behalf made by a lessee. order that a notice to quit upon a ground specified in paragraph (n) or in paragraph (0) of subsection five of section forty-one of this Act shall not be given in relation to a transfer or assignment of a lease or a sublease of any premises to which this subsection applies if, but only if. the Court is satisfied- (i) That, having been requested to consent to or approve of that assignment or transfer of the lease or to that sublease, the less~r refused that consent or approved without just cause; and (ii) That the lessor, having refused his consent or approval as aforesaid without just cause, has not offered to pay to the lessee a fair and reasonable price for the lease (including the goodwill of the bminess carried on by the lessee). (4) On the hearing of an application specified in subsection two or in subsection three of this section, any assignee, sublessee, or person in occupation of the prescribed premises concerned or any part thereof sh~lll be entitled to be heard. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 13; Act of 1961, 10 Eliz. 2 No. 29, s. 10. Subsection (l )-The court should take into account hardship to all-relatives, dependants, lodgers, guests-in relation to parties to the lease. Harte v. Frampton, [1948] 1 K.B. 73; [1947] 2 All E.R. 604. The Full Court of Victoria has decided that financial loss may be considered as an element in determining the issue of hardship; but the weight to be given to such a consideration must depend on the facts of each particular case. See Fenton v. Adams, [1948] V.L.R. 12, where the magistrate refused to make an order of ejectment against the respondent, a weekly tenant who was conducting a lodging-house business; and their Honours discharged an order nisi to review his decision. A company of limited liability as a legal entity can suffer "hardship" within the meaning of this section. See Bracken v. Ornacraft Pty. Ltd. (1951), 68 W.N.CN.S.W.) 198 (F.C.), and cases cited in next paragraph, infra. LANDLORD AND TENANT ACTS, 1948 TO 1961 s.49 683

For examples of facts held to justify a magistrate's finding on the issue of relative hardship, see Finney, Isles & Co. Ltd. v. Manteit and Malouf, [1949] St. R. Qd. 249 (shops; extensive plan of expansion of applicant company's business premises interrupted by war; findings that applicant and respondents would each suffer monetary hardship if order for possession were refused; issue decided in favour of applicant; order to review discharged); and Barry & Roberts Properties Ltd. v. Collins, [1950] St. R. Qd. 242; 45 Q.J.P.R. 18 (premises required by Ii cestui que trust company conducting a large department store in adjoining premises; business adversely affected by insufficient space; return from subject premises [ess than 2 per cent. on purchase price). The dwelling-house being the unit throughout this legislation, which is concerned with the provision of a suitable habitation, it has been held by the Court of Appeal that the absence of a garage could not be considered on the question of the suitability of the alternative accommodation, Briddon v. George, [1946] 1 All E.R. 609. Relative hardship is a question of fact; whether there is any evidence of hardship on one side or the other is a question of law, Marchants Ltd. v. Townsend (1948), 48 S.R.(N.S.W.) 97; De Marco v. Ellis, [1949] V.L.R. 97. But a finding of an ultimate fact may involve an error of law if it is made the basis of an exercise of discretion and facts or factors relevant to the validity of the finding have been left out of account. Harrison v. Mansfield, [1953] V.L.R. 399; [1953] A.L.R. 676, where Sholl, J., made absolute an order to review and remitted the case to the magistrate with a direction to exercise his discretion according to law. A magistrate has a discretion to make an order for recovery of possession by the lessor even though he finds that the lessee would suffer hardship if an order were made and does not find affirmatively that the lessor would suffer hardship if an order were refused, Ex parte Short; Re Christian (1956), 73 W.N.(N.S.W.) 406. In considering the hardship of "any other person"-mentioned in clauses (a) and (b) of this subsection-the court must take into account the status of such person in relation to the premises, Cowie v. Summerfield, [1953] V.L.R. 349; [1953] A.L.R. 795. The principle of res judicata is not applicable to the issue of greater hardship. See Burman v. Woods, [1948] 1 K.B. 111, where a county court having refused a landlord an order for possession he applied again about a year later and the judge upheld the tenant's preliminary objection wrongly, as the Court of Appeal decided. The provisions of this subsection do not apply where the landlord proves, as the ground of his notice to quit, that the tenant has sublet or become the assignee of premises without the landlord's consent, Phillips v. Forsyth, [1952] V.L.R. 344; [1952] A.L.R. 570. See however note on "special circumstances" (subsection (2)), infra. In considering the question of hardship the magistrate is not limited to the ground upon which a lessor has succeeded. He may consider the relationship between the parties, their individual circumstances and the manner and mode of the use of the premises. So held in Cassimatis v. Stamos, [1955] S.R.(N.S.W.) 157. For an example of a magistrate's exercise of his discretion on the question of hardship which the Full Court found not unsupported, see Tassoni v. Steve; Ex parte Steve, [1956] St. R. Qd. 72. Where a proposed assignment of a tenancy subject to the provisions of the Landlord and Tenant (Amendment) Act (N.S.W.) is for the purpose or has the effect of conferring a substantial benefit on a third party by reason of the operation of the Act, but results in little or no benefit to the tenant, and works an injustice on the landlord, it is not unreasonable for the landlord to refuse his consent. Bambury v. Chapman (1959),77 W.N.(N.S.W.) 191. The English Court of Appeal has ruled that the decision of the county judge when considering the balance of hardship as to all intents and purposes final and that it is not for the Court of Appeal to interfere where there is evidence on which the judge can reasonably come to the conclusion which he did. Coplans v. King, [1947] 2 All E.R. 393; Piper v. Harvey, [1958] 1 Q.B. 439, at p. 447. Where the magistrate has exercised his discretion in relation to hardship, his decision can be reviewed only when an error of law has been committed or the exercise of his discretion has so miscarried that his conclusion cannot be supported in point of law. See Massart v. Blight, [1951] 32 C.L.R. 423. For a further example see Hardie v. Frediani, [1958] 1 All E.R. 529, where the Court of Appeal declined to interfere with the decision of a county court judge for the same reason. LANDLORD AND TENANT Vol. 9

It was held by the High Court in Bamick Y. T. A. Field (Brisbane) Pty. Ltd., [1959] Qd. R. 433 that there were ample grounds to justify a magistrate's conclusion that the greater hardship lay on the side of the lessee in a case where the lessor had sold a retail business to the lessee some few years earlier for a substantial sum and had then become the co-purchaser of the freehold of the building in which the shop was situated deliberately with the intention of reassuming possession of that husiness. See also Quagliata Y. Hatfield, [1960] N.S.W.R. 675. Subsection (2)-Where the court is satisfied of the existence of either of the facts mentioned in subclauses (a) and (b) of this subsection, the discretion conferred by wbsection (1) comes into existence and must be exercised, Shanasy Y. Phillips, [1948] V.L.R. 413; [1948] 2 A.L.R. 544; 43 Q.J.P. 40. For an example of a wrong exercise of discretion by a magistrate, who excluded from his consideration matters which it was open to him to regard as amounting to special circumstances within the meaning of the corresponding provisions of the Landlord and Tenant Act 1948 of Victoria, see Air Force Association (Victoria Division) Y. White Manufacturing Co. (Australia) Pty. Ltd., [1951] V.L.R. 85; [1951] AL.R. 312, where Smith, J., examined the authorities. In a subsequent matter Cappel, A.J., while agreeing with the opinion expressed by Smi,h, J .• in that case, that in :'.Pllmpr':rle circumstances some forms of hardship suffered by a tenant may constitute "special circumstanccs" within the meaning of the corresponding section-so 45 (2) (a)-of the Victorian Act, held that after the stipendiary magistrate had found that special circumstances existed by reason of which an order for possession should not be 111<\de he ought then to have proceeded to consider whether any conditions should he impo:ied on the les,ee, and remitted the case to him to enable him to do so. Kiernan Y. West, [19521 V.L.R. 76 at pp. 78, 81; [1952J AL.R. 322, at pp. 334 and 336. Air Force Association (Victoria Di\'ision) Y. White Mallufacturillg Co. r /1 wtrulio) Pty. Ltd .. Sl/p},{/ was considered and explained in Bourke IlIrcstment.1 ,)11'. Ltd. ". J)-Juy's n\·. Ltd., I j ')521 V.L.R. 3()6: [1952] A.L.R. 559. by Herring. C.J., 1\ it .. ) \:nun~idled amI applied the fulluwing propo,itiom: (i) the lc"cc can nul dcfeat ! ;lC k·,>.,lr",; claim to po:,scssion by alleging thal special circumstances exist by rc:ason ,)i II hich the o;'del' shDuld not l'e Il1d(\e if the transactioll whereby he becamc lessee "":1' ,..,'i:\,.:r,-'d iil:l) ,tnd rk ig1'TJ rl~I' the rU[p()~C of dcfe:lt!n~' that cl~lim: (ii) lhe ie"~,t:c .:anl1ot rely on part of a transaction to establish special circumstances withoul placing hel p; e the cuu!'l all the relevant facts; (iii) if left in doubt whether special cirCl::nstanccs exist, the court should not refuse to make the order for possession. lor ~,·(}ld.llI!ilil v. C/II,m/'cr/nill (It)52), 6CJ W.N.(N.S.W.) 3··16. Kinsella. L holding that seven facts out of ten on which a magistrate had refused to make an order were irrelevant, ,ent a «he started back to t~he magistrate with a direction that he. excluding such irre1cv:lI1t facts from consideration. should determine whether the n;lll~lining facts which he had found proved were sulTicient to constitute special cin.:umstanccs.

As to special circumstances. see UrClIlIcr V. DOIIIII/Cl\'s/,i (1956).73 W.T\;.(N.S.w') 244.

Ordinary hardship-~hardship ~ulfered by a tenant who if ejected has no house \0 g,) to-is not a "speci

distinguishing Booton v. Clayton (1948), 48 S.R.(N.S.W.) 336, and Thomas v. Alpha Kllitwear Pty. Ltd. (1951) 51 S.R.(N.S.W.) 285, discharged the order nisi to review. See also Steventon v. Grech, [1956] V.L.R. 472; [1956] A.L.R. 1022.

50. Power to stay proceedings or orders. In respect of any proceedings referred to in section forty-nine of this Act the court having jurisdiction to hear and determine the matter of the recovery of possession of the prescribed premises concerned or for the ejectment of the lessee therefrom may- (a) From time to time, subject to such conditions (if any) and for such period as it thinks fit- (i) Adjourn the proceedings; (ii) Stay or suspend the execution of any judgment or order which has been made or given in the proceedings; or (iii) Postpone the date for recovery of possession or for ejectment specified in any such judgment or order; or (b) (Subject to such conditions (if any) as it thinks tit) vary, discharge, or rescind any such judgment or order; or (c) (\Vhcre a warrant of possession has been issued, and whether the warrant has expired or not) from time to time extend the period stated in the warrant Jor the execution thereof- (i) If the court is satisfied that, because of the illness of the lessee or for other surhcient cause, it is or has been impracticable for the olticer to whom the warrant is directed to execute the warrant within the period stated therein­ for slIch period as it thinks tit; or (ij) J f the court is not so satisfied-for a period not exceeding seven days from the date on which the extension is granted . .\s to appiications to the court, see rulc 18, p. 70-1, pO.II. S(,lIlhle an unreasonably long adjournment may be resisted by mandamus. See R. ,'. York Justices; Ex parte York Corporatioll (1949), 65 T.L.R. 138; 43 Q.J.P. ~4 (adjournment for six months, apparently on ground of hardship to defendant) and JOIICS v. Savcry, [1951] 1 All E.R. 820, where the Court of Appeal held that a postponement of the execution of an order for possession by a County Court judge in a civil action for a period of three months was not a judicial exercise of his discretion and that the period should be reduced to one month. The "judgment or order" to which paragraph (a) (ii) refers is a judrment or order for the recovery of possession of premises or ejectment therefrom. The phrase "stay or suspend the execution" in that paragraph does not contemplate ,omething different from the expression "postpone the date for recovery of possession" in paragraph (a) (iii). What the latter paragraph probably does contemplate is a judgment or order that fixes a date on which the premises are to be vacated; and from an abunuance of caution express power is conferred to deal with such a state of affairs on an application for an enbrgement of the time so fixed. (irallt v. A/I/{/d, [1949] V.L.R. 78. In Shllrpe v. YOllng, [1954] V.L.R. 586; [1954] A.L.R. 989, Hcrring, c.J .. held that the magistrate had power in the circumstances of that case to effect a division of the subject premises by ordering that a warrant of ejectment issue and staying the execution of the order until the lessors granted the tenant a tenancy of that part of the premises which he was to retain. Proceedings instituted by an application under paragraph (b) to vary, discharge, or rescind an order for possession are not an appeal properly so called or a rehearing of the application upon which the order was made. The magistrate is not limited to matters that were before the court when the order was made, even if evidence was then given: he may consider the existing circumstances right up to the 686 LANDLORD AND TENANT Yo!. 9 moment when he pronounced judgment and must do what in the circumstances is equitable in the broadest sense between the parties, not forgetting questions of relative hardship. It is for the applicant to satisfy him that he should interfere with the order already made and in general he ought not to interfere unless in all the circumstances it would be unfair or inequitable as between the parties to allow it to stand, Minio v. Hunter, [1952] V.L.R. 9, at p. 11, [1951] A.L.R. 1022 at p. 1023. He can entertain an application for variation or rescission so long as the orig!n~l order is current and can make such order in the way of variation or reSCISSIOn as he may deem proper. See Hilliger v. Hilliger (1952), 52 S.R.(N.S.W.) 105; 69 W.N.(N.S.W.) 109. In Bowles v. Anderson, [1949] St. R. Qd. 36; 43 Q.J.P.R. 31, where the warrant had not been executed, the Full Court held that the magistrate had jurisdiction to hear an application to rescind his order, and that on rescinding it under paragraph (b) he became functus officio and was wrong in proceeding to hear the landlord's original application. The fact that the warrant for possession has issued before an application for postponement does not preclude the magistrate from granting such an application. See Graziers Assn. of N.S.W. v. Australian Legion of Ex-Servicemen and Warnell (1949),49 S.R.(N.S.W.) 300. Semble a magistrate's refusal of an application for an immediate hearing of the respondent's application is an order within the meaning of s. 4 of the Justices Acts, 1886 to 1964, title JUSTICES, Vol. 8, p. 105. See Burnham v. Solomon, [1946] V.L.R. 431, [1946] A.L.R. 481; 40 Q.J.P. 162. On the status of a person in residence at the death of a lessee who died after obtaining suspension of execution of a final order for possession, cf. American Economic Laundry Co. Ltd. v. Little, [1951] 1 K.B. 400, applied in Lewis v. Reeves, [1952] 1 K.B. 19.

51. (1) Certain applications to operate as stay of execution. An applica­ tion to stay or suspend the execution of, or to vary, discharge, or rescind, any judgment or order referred to in section fifty of this Act, or to postpone the date for recovery of possession or for ejectment specified in any such judgment or order, shall, when filed with the proper officer of the court concerned, stay the execution of any warrant and operate to postpone the date for recovery of possession of the prescribed premises or for the ejectment of the lessee therefrom until the court has heard the application. (2) Notwithstanding anything contained in paragraph (c) of section fifty of this Act, the court may, on the hearing of any such application, extend for such period as it thinks fit the period stated in any warrant for the execution thereof (whether the warrant has expired or not). (3) Where, in respect of any proceedings referred to in section forty-nine of this Act, the court has refused to grant an application of any of the kinds referred to in subsection one of this section no further application of any of those kinds shall be made in respect of those proceedings except with the leave of that court. An applicant may not, by setting down the hearing of his application on some remote date in the future, stultify for that period the order for ejectment which has been made; for once the application has been filed the court is seised of the matter and can determine when the application is to be heard, Burnham v. Solomon, [1946] V.L.R. 431. 52. Hearing in chambers. Proceedings for the recovery of possession of any dwelling-house or for the ejectment of a lessee therefrom may, with the consent of all parties, be disposed of in chambers; but nothing in this section shall affect the power of any court of competent jurisdiction to dispose of any such proceedings in chambers otherwise than under this section. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.50-54 687

In this section the term "in chambers" means, in relation to a court of petty sessions, the holding of that court in the office of the stipendiary magistrate or acting stipendiary magistrate by whom it is constituted. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250.

53. Appeals. ( 1) Except as provided in this section, there shall be no appeal, in proceedings under this Part, from a judgment or order of a court of competent jurisdiction referred to in section forty-eight of this Act. (2) There shall be an appeal, as to questions of law only, to the Supreme Court from any judgment or order of any such court jn proceedings under this Part. For the purposes of this subsection the provisions of Part IX of 'The Justices Acts, 1886 to 1948," and any amendment of the said Part, whether made before or after the passing of "The Landlord and Tenant Act Amendment Act of 1949," shall apply but as so applied shall be read and construed as limited to questions of law. Any order or adjudication made by a court of competent jurisdiction under this Part shall be deemed for the purposes of Part IX of "The Justices Acts, 1886 to 1948," to be an order or conviction of justices and a decision of justices. As amended by Act of 1949, 13 Geo. 6 No. 31, s. 5 (1). Acts referred to: Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, p. 105. Landlord and Tenant Act Amendment Act of 1949, not reprinted. Section 5 (2) of the Act of 1949 reads as follows:- "(2) The amendment of the Principal Act made by this section ,hall be deemed to have been made on the first day of September, one thousand nine hundred and forty-eight, and to that extent shaH have retrospective operation." S~e Bowles v. A ndersoll, [1949] SI. R. Qd. 36; 43 Q.J.P.R. 31, which must be read in the light of this section as amended. The burden is on the tenant to show that there is greater hardship on him in having to move. It is undoubtedly the law that if it is just a matter of weighing the balance of hardship, that is a matter for the magistrate who hears the case. It is not a matter in which the appellate tribunal can interfere. The court will interfere only if on all the evidence there is only one reasonable conclusion to come to or, alternatively, if the magistrate has misdirected himself on the facts or on the evidence. See the judgment of Lord Denning in Piper v. Harvey, [1958] 1 Q.B. 439 at pages 445 and 446; [1958] 1 All E.R. 454 at page 457, in which the Court of Appeal applying Chandler v. Strevett (1947), 63 T.L.R. 84; [1947] 1 All E.R. 164, reversed the decision of Judge Herbert and decided that the order for possession should be made in favour of the landlord, who showed that he and his wife lived in one room in difficult conditions which gravely affected her health, whereas the tenant did not show that he had made any strenuous efforts to obtain other accommodation.

54. Ejectment orders not enforceable unless made under Act. Notwith­ standing anything in any Act no order (other than an order made under this Part or under the corresponding provisions of the National Security (Landlord and Tenant) Regulations of the Commonwealth) made by any court for the recovery by the lessor of possession of any prescribed premises (or of any goods leased therewith) or for the ejectment of the lessee shall be enforceable. See note on s. 133 of the Distress Replevin and Ejectment Act, p. 620, ante. 688 LANDLORD AND TENANT \'01. 9

55. Court may order compensation for misrepresentation. Where a lessor has obtained an order for the recovery of possession of any prescribed premises or for the ejectment therefrom of a lessee and it is subsequently proved that the order was obtained by a fraudulent representation or the concealment of material facts, the court which made the order may order the lessor to pay to the former lessee such sum as appears to that court to be sufficient as compensation for damage or loss sustained by the lessee as a result of the order. A certificate under the hand of the stipendiary magistrate or acting stipendiary magistrate constituting the court and specifying the amount payable and the respective parties by and to whom the same is payable may be filed in any court having civil jurisdiction to the extent of such amount and shall thereupon according to its tenor be enforceable in all respects as if it were a judgment of such court. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 14. 56. Premises not to be sold or relet in certain cases. ( 1) If a notice to quit is given on the ground specified in paragraph (g), (h), (i), 0), or (k) of subsection five of section forty-one of this Act, or was given on the corresponding ground specified in the National Security (Landlord and Tenant) Regulations of the Commonwealth prior to the passing of this Act, and the prescribed premises in respect of which the notice is or was given is, or has before the passing of this Act been, vacated in accordance with the notice, or if an order for the recovery of possession of the premises or for the ejectment therefrom of the lessee is or has, before the passing of this Act, been made on any such ground, the prescribed premises shall not, without the consent of the appropriate court, be again leased or sold, or agreed to be leased or sold, until after the expiration of the period of twelve months immediately succeeding the date on which the premises were vacated, possession of the premises was recovered, or the ejectment effected. (2) Any person who lets or sells or who agrees to let or sell any prescribed premises in contravention of a provision of subsection one of this section shall be guilty of an offence against this Act. (3) Nothing in subsection one of this section shall prevent- (a) The letting of any portion of the prescribed premises in question which is not reasonably required by the lessor or purchaser, as the case may be, but so that the total rent obtained is not greater than a reasonable rent for the whole of the premises less a reasonable deduction for the portion of the premises not so let; or (b) (Where notice to quit has been given on the ground specified in the said paragraph (h), (i), or (k» the letting of the prescribed premises- (i) To a minister of religion; (ii) To a beneficiary under the trust; or (iii) To some person employed, or about to be employed (whether as an independent contractor or as an employee) by the leswr in consequence of that employment, respectively. ( 4) A transaction entered into in contravention of subsection one of this section shall not thereby be invalidated, but nothing in this subsection shall affect the liability of any person to any penalty in respect of any contravention of that subsection. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.55·58 689

(5) In this section "the appropriate court" means- (a) Where an order has been made by a court for the recovery of possession of the premises or for the ejectment therefrom of the lessee-that court; and (b) In any other case-a court of petty sessions constituted by a stipendiary magistrate or acting stipendiary magistrate sitting alone. As to applications to the court for consent, see rule 19, p. 704, post. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. A tenant does not vacate in accordance with a notice where he leaves some time after its expiration and as a result of subsequent negotiations, Green v. Markus (1950), 50 S.R.(N.S.W.) 154. See also Goldsworthy v. Calvert, [1953] Q.W.N.l1. A former lessee may have an interest in proceedings under this section and can be made a party thereto as the application may be relevant in proceedings for compensation under s. 55, Ex parte David J. Smith Ply. Ltd.; Re Bird (1953), 70 W.N.(N.S.W.) 192.

57. Enforcement of orders. An order for the recovery of possession of any prescribed premises (or of any goods leased therewith) or for the ejectment of a lessee therefrom made by a court under this Part may be enforced in the same manner as a like order is made by that court otherwise than under this Part might be enforced.

58. Acceptance of rent not to waive notice to quit. Where notice to quit any prescribed premises has been given, whether before or after the passing of this Act- (a) Any demand by the lessor for payment of rent, or of any sum of money as rent, in respect of any period within six months after the giving of the notice; or (b) The commencement of proceedings by the lessor to recover rent, or any sum of money as rent, in respect of any such period; or (c) The acceptance of rent, or of a>ly sum of money as rent, by the lessor in respect of any such period, shall not of itself constitute evidence of a new tenancy or operate as a waiver of the notice. Semble the lessor will not be taken to have elected to waive his right to institute proceedings for the recovery of the premises unless he has indicated by clear and unequivocal conduct that he has so elected. See the jUdgment of HerrLlg, C.J., in Majala Pty. Ltd. v. Elias, [1949] V.L.R. 104 at pp. 106, 109. The question to be determined by the court is quo animo the rent was received and what was the real intention of the parties. The acceptance of rent after a notice of forfeiture has been held, in England, to be a different matter, Clarke v. Grant (1949), 65 T.L.R. 241; 43 Q.J.P. 144, overruling Hartell v. Blackler, [1920] 2 K.B. 161; 89 L.J.K.B. 838 (C.A.). See however Finney, Isles & Co. Ltd. v. Pelling Estate, [1950] St. R. Qd. 128, at p. 136; 44 Q.J.P.R. 2. See also Finlay v. Ruddell­ Jones (1949), 66 W.N.(N.s.W.) 32, in which the Full Court considered Oak Property Co. Ltd. v. Chapman, [1947] 1 K.B. 886; [1947] 2 All E.R. 1, at p. 6; 63 T.L.R. 338. The receipt of rent after the occurrence of events entitling the lessor to give a notice to quit cannot deprive him of that right unless the receipt continues for an unreasonably long time. The principles applicable to forfeiture of leases are not applicable to notices to quit, Campbell v. Payne and Fitzgerald (1953), 53 S.R.(N.SW.) 537. 690 LANDLORD AND TENANT Vol. 9

Subject to this section, the payment and acceptance of rent after the expiration of the notice to quit give rise to the implication of a new tenancy, unless the pay­ ment and acceptance thereof are otherwise explained. But if there was in reality no intention to create a new tenancy and no such intention can on the evidence be fairly imputed to the landlord, the court is not bound to hold that a new tenancy has been created, Mitchell v. Cummings, [1947] V.L.R. 315. The creation of a tenancy by agreement will not be inferred merely from the tender and acceptance of rent in respect of occupation of premises, when such occupation is under a court order, Lowen v. McLellan, [1948] V.L.R. 37.

59. (1) Persons not to interfere with use or enjoyment of premises. A person shall not, without the consent of the lessee of any prescribed premises, or without reasonable cause (proof whereof shall lie upon the defendant), do, or cause to be done, any act, or omit, or cause to be omitted, any act whereby the ordinary use or enjoyment by the lessee of the premises or of any goods leased therewith, or of any conveniences usually available to the lessee, or of any service supplied to, or provided in connection with, the premises is interfered with or restricted. (2) Where the lessor, or any agent or servant of the lessor, has been convicted of an offence against the last preceding subsection, the court recording the conviction may order the lessor to do such things as are necessary to enable the lessee to resume the ordinary usc or enjoyment of the premises, goods, conveniences, or service, and the ks';or shall comply with the provisions of the order. (3) For the purposes of this section conveniences shall be deemcJ to be usually available to the lessee where, prior to the usc of the con­ veniences having been interfered with or restricted without his consent, he has been allowed at all times during the tenancy to use those con­ veniences as he desired or he has been allowed to use those conveniences at times agreed to by the lessor and lessee or at times equivalent to those tir.les. In Taylor v. Smallwood, [1949] St. R. Qd. 80; 43 Q.J.P.R. 113, Stanley, J., held that the combined effect of this section and s. 41 (l) was to prohibit the lessors, without the consent of the lessee, from entering upon the demised premises on the expiration of the term, and that the lessors had no right to evict the lessee except in accordance with the procedure prescribed by this Act. The scope of this section was considered in Parker v. Richards, Ex parte Richards, [1954] S1. R. Qd. 325; 49 Q.J.P.R. 11, where the Full Court, upon appeal by way of order to review against a conviction for a contravention of SUbsection ( 1) hereof, held that "shared accommodation" (consisting of three bedrooms and a breakfast room of which the tenant had the exclusive use) was a "dwclling­ house" and "prescribed premises" within the meaning of this legislation. See also Ex parte Anderson; Re Green (1946), 46 S.R.(N.S.W.) 389.

60. Protection of sub lessees. (1) Where- (a) A lessor has consented to or approved a sublease of any prescribed premises or any part thereof by the lessee, or a lessee has sublet any prescribed premises or any part therof in the course of a business of subletting carried on by the lessee; and (b) The lessee ceases to be in possession of the prescribed premises, following upon- ( i) The obtaining of an order by the lessor for the recovery of possession of the premises from the lessee or for the eject­ ment of the lessee from the premises on any of the grounds LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.58-60 691

specified in paragraphs (a) to (f), both inclusive, of sub­ section five of section forty-one of this Act; or (ii) The surrender of his lease by the lessee, the sublessee shall (if he is in possession of the whole or portion of the prescribed premises sublet to him) be deemed to become the lessee thereof from the lessor upon the same terms and conditions as the terms and conditions of the sublease, as in force immediately prior to- (c) The date on which the lessor gave notice to quit to the lessee; or (d) The date on which the lessee notified the lessor of his inten­ tion to surrender the lease (or, if he did not so notify the lessor, the date on which the lessee surrendered the lease), as the case may be. (2) In a case to which subparagraph (i) of paragraph (b) of sub­ section one of this section applies, the order shall not be enforced against the sublessee. (3) Where, prior to the lessor of any prescribed premises giving notice to quit to the lessee upon any of the grounds specified in sub­ section five of section forty-one of this Act the lessee of the prescribed premises has sublet the whole or any part thereof- (a) The lessee shall, upon service of the notice to quit, forthwith notify the lessor in writing of the name and address of each person to whom he has so sublet and who is a sub­ lessee of the prescribed premises or any part thereof at the date of service of the notice to quit; and (b) The lessor shall, upon taking proceedings for the recovery of possession of the prescribed premises or for the ejectment of the lessee therefrom, file the notice given to him under this section with the proper officer of the court in which the proceedings are taken; and (c) The proper officer of that court shall thereupon give notice by registered post to each person specified in the notice, at the address so specified, of the date of hearing of the proceedings by that court. ( 4) On the hearing of any proceedings by a lessor for an order for the recovery of possession of any prescribed premises or for the ejectment of the lessee therefrom, every person who is a sublessee of such premises or any part thereof shall be entitled to be heard. As amended by Act of 1948, 12 Geo. 6 No. 46, s. 15. As to consent or approval, see Booton v. Clayton (1948), 48 S.R. (N.S.W.) 336; Gorman v. Pye (1951), 68 W.N.(N.S.W.) 180. Where there is no consent or approval, or the order is made upon a ground other than those contained in paragraphs (a) to (f), the order is enforceable against a subtenant, Watson v. Webb (1948), 66 W.N.(N.S.W.) 42; Goddard v. Lillycrap, [1948] V.L.R. 338; Anderson v. Bowles (1951) 84 C.L.R. 310. Except in the case of prescribed premises, where an underlease is not consented to or approved or entered into in the course of a business of subletting, the surrender of a lease does not avoid underleases, Booton v. Clayton, supra; Wilson v. Jolly (1948),48 S.R.(N.S.W.) 460. A sublessee exercising his right to be heard becomes a party to the proceedings, Ex parte Newstead; Re Abrahams (1948), 65 W.N.(N.S.W.) 138; Australia and New Zealand Bank Ltd. v. Ra\'. r1954J A.L.R. 440. The nature of evidence giving rise to inference of consent or approval of a landlord to a sublease was considered in Booton v. Clayton, supra. LANDLORD AND TENANT Vol. 9

61. Protection of certain persons in possession of prescribed premises. Where the lessee of any prescribed premises dies and a person (not being it lodger or boarder) who resided with the lessee immediately prior to his death is actually in possession of the premises immediately after his death that person shall have the like right to continue in possession of the premises as the lessee would have had if he had not died, but proceedings may be taken against that person for the ejectment of that person from the premises or for the recovery of possession of the premises from that person in accordance with the provisions of this Part as if he were a lessee of the premises. As to the scope of this provision, quaere whether it refers to statutory tenants a, well as to contractual tenants. See definition of "lease" and "lessor" in s. 7 (1) and (2). Compare and contrast Moodie v. llosegood. [1951] 2 All E.R. 582; [1951] 2 T.L.R. 455; Lewis v. Reeves, [1951] 2 All E.R. 855; [1951] 2 T.L.R. 958; AlIlcrimll L'cUlloll1ic Laundry Ltd. v. Little, [1951] 1 K.B. 400. The Full Court of Victoria has ruled that in s. 57 of the Landlord and Tenant Act 1948 (of which this section is a literal transcript) the words "actually in posscssion" have reference to "occupation", in contradistinction to a legal right to possession, and that for a person to be a lodger or boarder thereunder a contractual basis is required, Walsh v. Public Trustee; Walsh v. Smart, [19561 V.L.R. 525; [195()] A.LR. 1171. The only necessary characteristic of a contractural tenancy is that it shall give tu the tenant the right of exclusive possession for an ascertainable period of time; l'Cscrvation of rent is not essential, Francis LOllgmore & Co. Lid. V. Sledmall. [1948] V.L.R. 322, at p. 323; applying Lace v. Chanller, [1944] 1 KB. 368, at p. 370; ! 10-\·lj 1 All E. R. 305, and Landale v. Menzies (1909), 9 C.L.R. R9, at pp. 1(lO-lOl. In lillms v. Dellnis (194H), 48 S.R.(N.S.W.) 266, where a written agreement gave a "le,,,ec" liberty to use and occupy the premises "as tenant without payment of rent for . . .. twelve months from the date hereof" and the lessee having entered rcmained in possession for more than twelve months with the owner's consent, but p:,id no rent, the Full Court of New South Wales held that the facts raised the implication of a tenancy at will at common law and the implication of a "Iea,e" within the meaning of reg. 8 of the National Security (Landlord and Tenant) RCi..;tl;,ltions. Sec also, on jurisdiction, Furness v. Sharpley (1950), 51 S.R.(N.S.W.) 13 (death of tenant under notice to quit; action of ejectment against beneficiaries under '.. ,,'; :U! n:', I' ,II :,Lc'r ~:;firy of notice to qui, held incompetent). Semble this section is subject to the provisions of s. 41 (5) (I). Compare 1iI(JIIII).\(J/l v. Earth\', [1951] 2 K.B. 596; [19511 2 All F.R. 235; [19511 2 T.L.R. 22. where Roxburgh. J .. explaining the judgment of Denning, J., in Old,c:alc Lsillte.' Ud. '.. A 1,.':u1ulcr, [1 ()50] I K.B. 311, at p. 319. held that. a hu,b:l11d in desertion having sold the nntrimonial home, the purchaser on proof of his title \\ as entitled to an order for possession against the wife, who hGd remained in pos:;es);ion. As to the tenure of deserted wives, see also Bendall v. McWhirter, [1951] 1 All E.R. 13()7; Wabe v. Taylor, [1952] 2 All E.R. 420: Hendersoll v. Helltia.l'Oll 1I')5lJ), 51 S.R.(N.s.W.) 217; Adamson v. Blllch. [1956] A.L.R. 250; Morcl' v. j','llii,'C,', (19:;~», 73 W.N'(N.S.W.) 247. Semble, apart from "lodger" and "boarder," the word "person" does not here bear a restricted meaning. Contrast the limited protection given by the English legislation on which see Tiflkh~1I1 V. Perry, [1951] 1 All E.R. 249; [1951] 1 T.L.R. 91, and Foster v. Robillson, [1951] 1 KB. 149; [1950] 2 All E.R. 342; [1950] 2 T.L.R. 120. Semble the force of this provision is spent when a statutory tenancy has devolved under it once. Compare Mareroft Wagons Ltd. v. Smith, [1951] 2 KB. 496; [1951] 2 All E.R. 271. For an example of what is not a sufficient variation of a statutory tenancy to create a contractual tenancy, see M. & H. Steel v. Cock croft, [1951] 2 Ali E.R. 175. 62. Costs not to be allowed. No costs shall be allowed in any proceedings in relation to which this Part applies, not being proceedings in respect of an offence arising under this Part. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.61-63 693

See hereon Commissioners of the State Savings Bank of v lClOria v. Rogers Bros, Motor Cycle Agency Pty. Ltd., [1954] V.L.R. 149; [1954] A.L.R. 318. The provisions of this section have been held to extend to appeal by way of order to review, Archos v. More; Ex parte More, [1949] Q.W.N. 39; 43 Q.J.P.R. 159. An application for special leave to appeal to the High Court is not a proceeding under this Act, and the High Court has power to award costs, O'Mara v. Harris, [1948] 2 A.L.R. 403. 62A. Dwelling-house of mentally sick person. Where the Public Curator of Queensland has, before or after the passing of this Act, leased a dwelling-house- (a) Forming part of the estate of a person who at the time when the lease was granted was a mentally sick person within the meaning of "The Mental Hygiene Act of 1938"; and ( b) Which was thc residencc of such person before he became a mentally sick person within the mcaning of that Act, the provisions of this Part of this Act shall not, in respect of that lease, apply to the dwelling-hoLlse. In.'erieo by Act of 1957, 6 Eliz. 2 No. 35, s. 9. Act referred to: Jvlental Hygiene Act of 1938, see now Mental Health Acts, 1962 to 1964, title MENTAL HEALTH.

63. !'::'(ciusion of premises let for a short term from operation of this Part. ( I) The lessor or former lessor under a lease, or the proposed lessor under a proposed lease, of any prescribed premises for a fIxed term not excceding six months may, at any titne while the lessee or former lessee is in occupation of the premises, or prior to the commencement of the tCrIl! or thc proposed lease, make application in writing to a court of petty sessions having jurisdiction to hear and determine the matter of rccovery of pos~ession of those premises or for the ejectment of the lessee therefrom to exclude the premises from the opcration of such of the provisions of this Part of this Act as do not apply to holiday premises as such. (:2) The applicant shall furnish such information in relation to the apic!icaLon a~ the aforementioned court requires. (3) The court may, in its discrction. make an order excluding the premises, for such period as is spccifIed in the certificate, from thc operation of the provisions of this Part, and the premises shall be excluded accordingly. (4) The Court may at any time revoke or vary any order made under the last preceding subsection or any certificate issued under thc corresponding provisions of the National Security (Landlord and Tenant) Regulations of the Commonwealth (and, subject to this subsection, any such certificate shall be deemed to be an order made under this section). See also s. 4A. As to appli~ation for certificate, see rule 20, p. 704, post. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. An order of exclusion made under subsection (3) of this section affects the subject premises and inures for the benefit of a bona fide purchaser of the premises for value, to whom a tenant who has consented to the grant of such a certificate owes a duty of disclosure. The power given by subsection (4) to revoke such a certificate must be exercised judicially on material justifying the exercise thereof, Rowland-lanes v. Smith; Ex parte Smith, [1951] St. R. Qd. 185. 694 LANDLORD AND TENANT Vol. 9

As to how far a certificate is binding and conclusive, see Fricker v. Blower, [1956] S.R.(N.S.W.) 277. 64. Exclusion of certain subdivided premises, etc., from operation of this Part. (1) The provisions of this Part shall not apply to or in relation to any prescribed premises in respect of which an order under this section is in force (and, subject to this section, any certificate issued under the corresponding provisions of the National Security (Landlord and Tenant) Regulations of the Commonwealth shall be deemed to be an order made under this section). (2) Where the owner of any prescribed premises is desirous of making the whole or any part of those premises available for accommoda­ tion, he may apply to the court of petty sessions having jurisdiction under this Part for an order that the premises are premises to which this Part does not apply. (3) The Court may- (a) Grant the application and make the order either uncondition­ ally or subject to such conditions as it thinks fit and for such period as it thinks fit; or (b) Refuse the application. ( 4) An order made under this section in respect of premises being any part of a dwelling-house or of a residential unit in any building shall not have any force or effect in respect of any person who immediately prior to the making of the order was the lessee of the dwelling-house or of any part of the dweJIing-house or of the residential unit or of any other residential unit in the building. (5) The court may revoke or vary any order made under this section. (6) This section shaJI apply only in relation to prescribed premises being- (a) A dwelling-house which is not in whole or in part leased to any person; (b) A dwelling-house which the owner or lessee has converted, or intends to convert, into two or three, but not more, residential units; (c) A dwelling-house or part of a dwelling-house which is leased to any person and which is about to become vacant; (d) A part of a dweJIing-house which has been leased by the owner but is not for the time being leased to any person; or (e) A residential unit in a building which the owner of the building proposes to lease or to permit to be leased for residential purposes separately from the remainder of the building and which has not previously been so separately leased, but shall not apply in relation to any building containing more than three residential units or in relation to any residential unit in any such building. (7) In this section "residential unit" means any part of a building which is or has been designed, whether originaJIy or otherwise, for occupation as a residence independently of any other part of the building. As to application for certificate, see rule 20. p. 704. post. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.63-65 695

64A. Certificate as to holiday premises. (1) A lessor of holiday premises may make application to the registrar at Brisbane for a certificate that the premises referred to therein are holiday premises for the purposes of this Act. (2) The applicant shall furnish such information in relation to the application as the aforementioned registrar requires. (3) The registrar shall grant a certificate in the prescribed form or refuse the application. ( 4) The registrar shall revoke any certificate on proof to his satisfac­ tion that the subject premises were not or have ceased to be holiday premises within the meaning of that term as defined in subsection one of section seven of this Act. (5) Any lessor or intending lessor affected by any grant, refusal or revocation of a certificate by a registrar under this section may appeal therefrom to the Fair Rents Court. Such appeal shall be by way of endorsement on the application for the certificate by the registrar at the request of the owner or lessor or proposed lessor, or by notice in writing to attend before a Fair Rents Court without any further application within seven days after the grant, refusal or revocation complained of, or such further time as may be allowed by the said Court or registrar. Unless otherwise ordered there shall be one clear day between service of the notice of appeal and the day of hearing. (6) Notwithstanding any other provisions of this Act and without prejudice thereto, any dwelling-house which, before or after the passing of "The Landlord and Tenant Acts Amendment Act of 1957," was or is holiday premises, shall not cease to be holiday premises by reason only that a certificate under this section has not been granted and in force. (7) A certificate granted and in force under this section shall, in any proceedings under or for the purposes of this Act or "The Summary Eject­ ment Act of 1867," be prima facie evidence that the premises described therein are holiday premi-;es within the meaning of this Act. Inserted by Act of 1957, 6 Eliz. 2 No. 35, s. 10. Acts referred to: Landlord and Tenant Acts Amendment Act of 1957, not reprinted. Summary Ejectment Act of 1867, p. 749, post.

PART IV-MISCELLANEOUS 65. Contract to avoid Act. Any contract or arrangement, whether oral or in writing, the purpose or effect of which is either directly or indirectly to defeat, evade, or prevent the operation of any of the provisions of this Act, shall be absolutely void and of no legal effect whatsoever. See however s. 4A. Where a sublease provided that the term of the sublease should ipso facto be determined upon the delivery of a notice to quit it was held that such provision was void by virtue of s. 65 as being contrary to ss. 41 and 42. Roche v. Norman; Ex parte Norman, [1961] Qd. R. 36. As to "contract or arrangement", cf. Jaques v. Federal Commissioner of Taxation (1924), 34 C.L.R. 328, at p. 359; Clark v. Federal Commissioner of Taxation (1932), 48 C.L.R. 56; John Hicks Ltd. v. John Hicks & Co. Ltd., [1917] St. R. Qd. 20. Provision against contracting out does not operate to prevent a tenant from ceasing to be a tenant by surrendering his lease, Fowler v. Begg (1954), 70 W.N.(N.SW.) 292. 696 LANDLORD AND TENANT Vol. 9

66. Expiry date of notice to quit. A notice to quit may expire at any orne notwithstanding that the date indicated in such notice as the date upon which possession is to be given does not coincide with the last day of a period of the tenancy, if- (a) In any case where prescribed premises are the subject of such notice, all of the applicable provisions of Part III of this Act have been complied with as respects such notice; or (b) In any case where premises other than prescribed premises are the subject of such notice- (i) (Where the lessor and the lessee of the premises, other than prescribed premises, the subject of such notice have agreed upon the period for which such notice may be given, and the period so agreed upon may lawfully be given) such notice has been given for the period so agreed upon; or (ii) (Where there is no such agreement as aforesaid or where the period agreed upon by any such agreement as aforesaid cannot lawfully be given) such notice has been given for a period not less than that required by law. In any such case in respect of the last period of the tenancy the rent payable shall, where appropriate, be apportionable. As to notices to quit, see ss. 41, et seq. This section has changed the old rule which was expressed in these terms: In any periodic tenancy, whether it be yearly, quarterly, monthly or weekly, the notice to quit must expire at the end of the current period, Lemon v. Lardeur, [1946] 2 All E.R. 329, Court of Appeal, overruling Simmons v. Crossley, [1922] 2 K.B. 95, and approving Queen's Club Gardens Estates Ltd. v. Bignell, [1924] 1 K.B. 117; 39 T.L.R. 496; [1923] All E.R. Rep. 165. The overriding intent of this section is to abolish the necessity of fixing the exact expiry date which the vexing common law rules require, provided that a notice of the length required by statute, agreement or the common law is given, Gilshenan v. Hancox; Ex parte Hancox, [1958] Qd. R. 111 at p. 116; 52 Q.J.P.R. 121. See also Bathavon Rural District Coullcil v. Carlile, [1958] 1 All E.R. 801; Rowston v. Sydney COUllty Coullcil (1954), 55 S.R.(N.S.W.) 37.

67. Service of notices. (1) Any notice (other than a notice to quit) required by this Act to be given to or served upon any person may be given or served- (a) By delivering it to such person; or (b) By leaving it at his usual or lastknown place of abode or business with some person thereat who is apparently over the age of sixteen years; or (c) By sending it by prepaid registered post to such person at his usual or lastknown place of abode or business. (2) Any notice (other than a notice to quit) required by this Act to be given to or served upon any person may, if the person is a company or body corporate or a registrar, be given or served- (a) By delivering it to the manager or secretary of the company or body corporate; or (b) By leaving it at the office or place of business of the company, body corporate, or registrar with some person thereat who is apparently over the age of sixteen years; or (c) By sending it by prepaid registered post to the company or body corporate or the registrar at its or his office or place of business. LANDLORD AND TENANT ACTS, 1948 TO 1961 ss.66-70 697

(3) Where any notice by the registrar of any Fair Rents Court is required by this Act to be given to or served upon a person whose addwss is unknown to the registrar, it may be given or served by publishing it or a notice substantially to the same effect once in the Gazette and once in a daily newspaper circulating in the petty sessions district in question. On service see Taylor v. Marmaras, [1954] V.L.R. 476; [1954] A.L.R. 860. As to service of notices to quit, see s. 41 (4). As to service by post, see also Acts Interpretation Acts, 1954 to 1962, s. 39, title ACTS OF PARLIAMENT, Vol. 1, p. 100. "Petty sessions district" now Magistrates Courts district. See Justices Acts Amendment Act of 1964, s. 2 (1), title JUSTICES, Vol. 8, p. 249.

68. Notice to agents, etc. (1) Any notice required by this Act to be given to or served upon a lessor under the lease of any dwelling-house shall be deemed to have been duly given or served if it is given to or served upon the person to whom the rent payable under the lease is customarily paid by or on behalf of the lessee. (2) Any notice required by this Act to be given to or served upon a lessee under the lease of any dwelling-house shall be deemed to have been duly given or served if it is given to or served upon the person by whom th~ rent payable under the lease is customarily paid on behalf of the lessee. (3) If two or more persons are lessors under any lease of any dwelling-house it shall be a sufficient compliance with any provision of this Act requiring any notice to be given to or served upon such lessors if such notice is given to or served upon anyone of such lessors. ( 4) If two or more persons are lessees under any lease of any dwelling-house it shall be a sufficient compliance with any provision of this Act requiring any notice to be given to or served upon such lessees if such notice is given to or served upon anyone of such lessees. As amended by Act of 1961, 10 Eliz. 2 No. 29, s. 11. Compare and contrast Harrowby v. Snelson, [1951] 1 All E.R. 140 (intestate tenant; notice to quit service before grant of letters of administration). As to sufficiency of authority, see Rye v. Gent (1956), 73 W.N.(N.S.W.) 585.

69. Continued operation of notice. Any notice required by this Act to be given to or served upon any lessor or lessee shall, if it has once been duly given to or served upon such lessor or lessee, be binding on all persons claiming by, from, or under such lessor or lessee and all subsequent lessors or lessees to the same extent as if given to or served upon such person claiming as aforesaid or subsequent lessors or lessees respectively.

70. Offences and penalties. (1) Any person who contravenes or fails to comply with any provision of this Act shall be guilty of an offence against this Act. (2) Any person who is guilty of an offence against this Act shall be liable, unless some specific penalty is prescribed by this Act, for that offence, to a penalty of not more than two hundred dollars or to imprison­ ment for a term of not more than six months. (3) Any offence against this Act may be prosecuted in a summary way under "The Justices Acts, 1886 to 1948," upon the complaint of any member of the Police Force, or of a registrar, or of any person aggrieved thereby, or, if so prescribed, of an authorised officer appointed under section seventy-two of this Act. 698 LANDLORD AND TENANT Vol. 9

( 4) A conviction, order, or other proceeding of a court of petty sessions in relation to a complaint of an offence under this Act shall not be invalid merely by reason of the fact that the court purported to sit as a Fair Rents Court for the purpose of hearing and determining that complaint. Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965. Act referred to: Justices Acts, 1886 to 1965, title JUSTICES, Vol. 8, p. 105. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. 71. Court may order refund of amounts overpaid. ( 1) A court of pctty sessions may, upon convicting any person of any offence against Part II of this Act, in addition to any penalty, order that any amount which has been received by or paid to that person in contravention of the said Part II be refunded to the person by whom the payment was made. (2) Where a court of petty sessions has made an order undcr sub­ section one of this section, a certificate under the hand of the clerk of that petty sessions specifying the amount ordered to be refunded and the person to whom the amount is payable may be filed in any court having civil jurisdiction to the extent of that amount, and shall thereupon be enforce­ able in all respects as a final judgment of that court. Semble it is not necessary that at the time the order for a refund of moneys paid in contravention of Part II is made the person who made the payment should still be the tenant; d. Riordan v. Minchin, [1949] 1 K.B. 137; [1948] 2 All E.R. 633. "Court of petty sessions" now Magistrates Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. "Clerk of petty sessions" now Clerk of the Court. See Justices Acts Amendment Act of 1964, s. 2 (4), title JUSTICES, Vol. 8, p. 250. 72. Authorised officers. (1) The Governor in Council may, from time to time, appoint persons to be authorised officers under and for the purposes of this section. Such appointments may be made generally or as respects any Petty Sessions District or group of two or more Petty Sessions Districts. Every appointment of an authorised officer shall be notified in the Gazette and every authorised officer shall upon appointment be given a certificate in writing of his appointment signed by the Under Secretary of the Minister's Department. (2) Subject as directed by the Minister or by an officer of his Department thereunto appointed by the Minister, applications for deter­ minations made to Courts within any Petty Sessions District in respect of which any authorised officer or officers has or have been appointed shall be referred to such an authorised officer for investigation and report. Such investigation and report shall relate to all facts and circum­ stances which, in the opinion of the authorised officer, are necessary to enable the Court to make a proper determination of the fair rent of the dwelling-house (or dwelling-house and goods leased therewith) in question. (3) The authorised officer shall file his report with the registrar of the Court concerned, and the registrar shall produce the report to the Court at the hearing of the application. Upon production as aforesaid the report shall be evidence in the proceedings but without prejudice to the right of any party to adduce evidence. LANDLORD AND TENANT ACTS, 1948 TO 1961 55.70-72A 699

The Court may, if it thinks fit, and shall upon the application of any party, require the authorised officer who made the report to appear and to be examined upon the report. (4) An authorised officer may, in the course of making any investi­ gation- (i) Enter and inspect the dwelling-house (or dwelling-house and goods) the subject of that investigation; and (ii) Require any person to furnish to him verbally or in writing any information which in the opinion of that authorised officer is relevant to that investigation; and (iii) Require any person to produce for his inspection, and take copies of or extracts from, any documents, books, or papers in the custody or possession of that person relating to any fact or circumstance which in the opinion of that authorised officer is relevant to that investigation. ( 5 ) A person- (i) Who obstructs or attempts to obstruct the lawful entry by an authorised officer upon any dwelling-house; or (ii) Who obstructs the lawful inspection by an authorised officer of any dwelling-house or goods; or (iii) Who fails to furnish any information lawfully required by an authorised officer, or who furnishes any such information which is false or misleading in any particular; or (iv) Who fails to produce for inspection by an authorised officer any document, book, or paper which that officer may lawfully inspect, or who prevents or attempts to prevent an authorised officer from taking a cory of or extract from any such document, book, or paper, shall be guilty of an offence. (6) In addition to the powers, functions, and duties specified in this section, an authorised officer shall have and exercise all such other powers, functions, and duties under and for the purposes of this Act as may be prescribed from time to time. (7) The clerk or other officer having custody of the books or other records relating to the valuations, rates, and othcr charges of a Local Authority shall allow an authorised oftlcer to inspect and take copies of or extracts from such books and records, and shall not be entitled to charge any fee in respect of such inspection, copies, or extracts. See hereon Burrell v. Duncan (1957), 51 Q.J.P.R. 101. "Petty Sessions District" now Magistrates Courts District. See Justices Acts Amendment Act of 1964, s. 2 (I), title JUSTICES, Vol. 8, p. 249.

72A. Power of registrar, etc., to inspect, etc. (1) The registrar at Brisbane or any authorised officer may enter upon and inspect any prescribed premises wherever situated for the purposes of investigating any matter arising under this Act and inspect any documents, books, or papers in the custody of any person relating to any fact or circumstance which in the opinion of that registrar or authorised officer is relevant to that investi­ gation. (2) The registrar or any authorised officer may make copies of or take abstracts from any documents, books, and papers (or of any entries thcrein), or impound or retain any documents, books, and papers 700 LANDLORD AND TENANT Vol. 9

produced to him or inspected by him in pursuance of this section but, in the case lastmentioned, the person entitled to those documents, books, and papers shall, in lieu thereof, be entitled within a reasonable time to a copy certified as correct by the registrar, and such certified copy shall be received in all Courts as evidence and as of equal validity to the original. (3) A person shall not hinder, obstruct, or otherwise interfere with, or attempt to hinder, obstruct, or otherwise interfere with the registr~r or any authorised officer in the execution of any of his powers under thIS section. Inserted by Act of 1954, 3 Eliz. 2 No. 42, s. 7. 73. (I) Regulations. The Governor in Council may from time to time make regulations for or with respect to prescribing all matters and things which are by this Act permitted or required to be prescribed (excepting any such matter or thing required by this Act to be otherwise prescribed) or which are necessary or expedient to be prescribed for giving effect to this Act. (2) Penalties. Any such regulation may prescribe a penalty of not more than one hundred dollars for any breach of the regulations. Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965. For regulations, <,ce Tabic of Contents, p. 579, lillie. As to validity of regulations generally, see Preliminary Note to title ACTS OF PARLIAMENT, Vol. 1, p. 72.

73A. When Court may determine procedure. When any proceeding~ may be instituted or any application to a court may be made under this Act, and the manner or form of procedure is not prescribed by this Act or by any other Act or law, or by the practice of that court, any party or applicant may apply for directions to the court having jurisdiction j;] the matter of the proceedings or application, and any step taken in accorci:1ncc with the directions given by the court shall be regular and sufficicnt. Inserted by Act of 1948, 12 Geo. 6 No. 46, s. 16. 74. Publication of Orders in Council and regulaHons. (I) Every Order in Councilor regulation made under this Act shall- (a) l3e published in the Gazette; (b) Shall, upon its publication in the Gazette, be judicially noticed and such publication shall be conclusive evidence of the matters contained therein; (c) Take effect from the date of such publication, or in the case of any such regulation, if a later date is specified in the regulations from that later date; and (d) Be laid before Parliament within fourteen sitting days after such publication if Parliament is in session, and if not, then within fourteen sitting days after the commencement of the next session. (2) If Parliament passes a resolution of which notice has been given at any time within fourteen sittings days after any such Order in Council or regulation has been laid before Parliament disallowing such Order in Councilor regulation or part thereof, that Order in Councilor regulation or part shall thereupon cease to have effect, but without prejudice to the validity of anything done in the meantime. For the purposes of this subsection the term "sitting days" shall mean days on which Parliament actually sits for the despatch of business.