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Decisions of the Superior Courts of New South Wales, 1788-1899

Williamson v Arnold (1831) NSW Sel Cas (Dowling) 685; [1831] NSWSupC 60

tenancy, distress for rent, action against landlord, set off 

Supreme Court of New South Wales

Dowling J., 23 September 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 84] [Ques. whether Trespass will be against a landlord for an illegal and excessive distress.  Where it was agreed by a landlord that he would allow certain repairs done by his tenant to be sett off in reduction of Rent the amount of which repairs should be adjusted by two indifferent persons:  Held that this was a condition precedent to the actual [p. 85] allowance for repairs out of the rent.  Where a distress for rent was put in January 1831 for rent claimed to be due on the 18th March 1830 when in fact the rent would not be due until the 19th March  Held in an action for an illegal distress that this was no cause for action.][1 ]

[p. 84]

Friday 23rd Sept 1831

Coram Dowling J

Williamson v Arnold

Trespass for an illegal distress and suing without legal authority N.G.

F Stephen

In 1829 Plaintiff took a farm Dog Trap road from Mr Whitfield who has since married Defendant  Lease £40 per Quarter 19th Sept 19 March 19 March [sic] 1830 1st payment 19 Sept last year Landlady agrees to allow for repairs.

Question is whether that is to be deducted out of the rent.

Plaintiff made repairs exceeding 1st years rent before half due.

24 July last a praecipe sent up for to distrain half a years rent [p. 85] paid Ryan £20 sterling 6 months rent due sending 18 March 1830.  On 4 or 5 a Bailiff accompanied by Defendant and friends came up and in a forcible manner put up a variety of property.

Notes

[1 ] The full text of the Australian's version of this case (30 September 1831) is as follows: "This was an action to recover damages for a trespass in making a distress on plaintiff's farm on the Liverpool-road.  Plaintiff got a nominal verdict, subject to two points reserved for argument in full Court, and on which the verdict of the Assessors was to depend.  For the plaintiff, Messrs. Sydney and Francis Stephen; for the defendant, Mr. Foster and Mr. Sheehy."

Published by the Division of Law, Macquarie University