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

Loane v Perry [1833] NSWSupC 96

land law, title - tenancy - Birchgrove - Balmain

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 5 November 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 176] This was an action for the use and occupation of a house & premises called Birch Grove situate in Port Jackson.  At the trial before Forbes CJ. the Deft had a verdict subject to the opinion of the Court, on a motion [p. 177] for entering a verdict for the plf for amount of the rent claimed to be due.

His case was in substance this: - The plf was owner of the premises in question, & he was lessee for years also of an adjoining estate & 100 acres called Bellmain, on which he had some cattle depasturing.  The deft being desirous of renting the two properties and having the use of the cattle, opened a registration with the plf's agent living in Sydney, the plf himself being resident in Van Dieman's Land.  Accordingly a written agreement for a lease for seven years commencing from 29th Oct 1829, was entered into at 150£. per annum payable half yearly, the deft to keep the premises in repair, & stipulating on the part of the plf that if before the 7 years expired, the proprietor of Bellmain should resume the possession of that part of the demised premises, that circumstance was not to interfere with the lease.  A right was also reserved by the agent on behalf of his principal, that if the latter should return & not approve of the letting, the agreement [p. 178] for the lease was to determine as giving the Deft three months notice, & the plf. paying the expense of any improvement made on the premises.  The deft entered upon the whole of the demised premises & paid rent for the whole under the written agreement, for one year.  In October 1830 the plf of his own accord re-entered upon that part of the demised premises called Bellmain - built a house thereon, & let the same to another tenant.  It also appeared that he had before this entered upon Bellmain & cut timber thereon.  In consequence of this alleged infraction of the agreement respecting Bellmain, the deft protested against it, & proposed to enter into a fresh agreement on different terms for Birch Grove alone - which was not accepted.  In the meantime he continued in possession of Birch Grove, & paid rent for the same at the rate [p. 179] of 150£ per annum up to the 1st Decr. 1831 when he left the house, delivering the key to an agent of the plf, who accepted the same, & afterwards gave no receipt for the balance of rent due on 1st Decr 1831.  This action was brought for the rent subsequently due, the plf claiming to treat the Deft as a tenant from year to year, of Birch Grove from the time that Bellmain was reoccupied by the plf.  The question therefore was whether the Deft was bound to pay any rent beyond the 1st Decr. 1831.

The case having been reserved the Court now gave judgement.

Forbes C.J.  We are of opinion that the verdict for the Deft ought not to be disturbed.  The re-entry of the plf on that part of the demised called Bellmain, was clearly an eviction in law from the whole of the demised premises, & consequently there was an end to the agreement for a lease for seven years.  It is true that there was a reservation in the agreement, [p. 180] that of the proprietor of Bellmain should resume the possession of that part of the demised property, that should not interfere with the agreement for the lease.  The plf was himself only lessee of Bellmain, & therefore the land "proprietor", must be understood to mean, the ground land lord, & not the plf himself, who was not the proprietor of the land.  The entry on the land to cut timber we do not consider an eviction according to Farnably v Clarke, (2 Roll Rep. 398.); but it is clear that the plf evicted the Deft by taking possession of Bellmain building a house thereon, & letting the same to another tenant.  (See Colet - 1486. Hob. 192. Cowp. 142. 1 Salk. 65. 1 Stark 94. 3 Campbell 314.-)  The deft then became only tenant from year to year of Birch Grove, and could not discharge himself from the obligation of giving six months notice, to quit, unless he was released by some act of the plf or of his authorized agent. -  Now it is in proof that the plf [p. 181] had appointed a general agent in this colony to collect his rents & performed other acts as his competent & duly authorized agent.  On the 1st Decr 1831 this agent reced all rents due to that period & gave an acknowledgment according - accepted the key - took possession of the lease, & subsequently let the same to another tenant, during the time for which the Deft was now sought to be made liable for rent.  It appears therefore to us, that the plf cannot maintain this action.

Rule for a new trial refused.

Published by the Division of Law, Macquarie University