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

Doe dem. Cooper v. Levy [1838] NSWSupC 90

land law, title - ejectment - theatre - tenancy

Supreme Court of New South Wales

Willis J., 18 September 1838

Source: Australian, 21 September 1838

TUESDAY - Before Mr Justice Willis and Messrs Manning and Campbell, Assessors.

Doe on the demise of Cooper and Levy. - This was an action of ejectment brought by the plaintiff, the lessor, to recover possession of certain premises known as the Theatre Royal, in George-street, Sydney, from the defendant, Sarah Emma Levy, as executrix to the late Barnett Levy.

The question on which the case rested was, whether the agreement under which the defendant held the Theatre, was a yearly or weekly tenure.

Mr Holt, of the firm of Cooper and Levy, swore that the tenure was a weekly one, and that the rent had been paid weekly, which was not disputed.  A written agreement was spoken of by the defendant's counsel, but none was forthcoming, and the Assessors immediately found a verdict for the plaintiff.  Counsel for the plaintiff, the Attorney General and Mr Fisher; for defendant, Mr Windeyer.


Dowling C.J., Burton and Willis JJ, 22 September 1838

Source: Sydney Herald, 24 September 1838[ 1]


Doe dem Cooper v Levey.  This was an action of ejectment, brought to recover possession of the old Theatre George-street, tried before Mr. Justice Willis, when a verdict was returned for the plaintiff.  Mr. Windeyer on the part of Mr. Joseph Wyatt, the tenant in possession, now moved that execution be stayed, no notice of action having been served on him.  Rule nisi granted; proceedings in the mean time to be stayed.


Dowling C.J., Burton and Willis JJ, 6 October 1838

Source: Australian, 9 October 1838[ 2]


Ex-parte Wyatt - This was a Rule Nisi obtained on a former day, calling on Mr Holt as agent to Messrs Cooper and Co. to shew cause why execution should not be stayed, on the ground that no notice of trial in the case Cooper versus Levy had been served on Mr Wyatt, who claimed to be the tenant in possession.

The Attorney General appeared to shew cause against the Rule, and contended that the tenantcy was not established by Mr Wyatt's affidavit.  The Attorney General read the affidavit of Mr Holt, of the firm of Cooper and Co., which stated that he had had many conversations with Mr Wyatt on the subject of the Theatre, and Mr Wyatt had stated, in those conversations that he had simply made arrangements with Mrs Levy to keep the Theatre shut up; and deponent believed that Sarah Emma Levy the actual tenant in possession, and that there had been collusion between Mr Wyatt and Mrs Levy for the purposes of delay; and that Mr Wyatt was under engagement to pay the expenses of the suit Cooper versus Levy, in the event of the action going against Mrs Levy.  The affidavit of Mr Smith, attorney at law, stated that he had called at the Theatre, with a copy of the declaration, and finding the Theatre shut up, he proceeded to the residence of Mrs Levy, in Park-street, and furnished her personally with a copy of the declaration - that he asked Mrs Levy if she would give up possession of the Theatre to Mr Cooper, to which she replied she would not; and on the deponent saying that he must get possession by ejectment, she replied, ``don't you wish you may get it."  Affidavits by Mr Richard Crampton and Mr Henry Green were put in, and stated that they had attended at the Theatre with Mr Sippe, who was compelled to attend and play, after it was shut up, and that Mrs Levy attended as the proprietress of the Theatre, and turned them out of the house, stating that it was her property.

Mr Foster was about to follow on the same side, when the Court said it would hear Mr Windyer [sic] in support of the Rule, and if it was necessary, Mr Foster might follow.

Mr Windeyer supported the rule.  He contended that Mr Wyatt had sworn that he was the tenant in possession, and that he ought to have been served with notice of trial; and he referred to His Honor the Judge who had tried the cause, whether, on the trial, Mr Wyatt had not been objected to as a witness, on the ground that he was the tenant in possession, which was now denied; although the affidavits he now tendered to the Court, expressly stated that Mr Holt was perfectly acquainted with the tenantcy of the Theatre being vested in Mr Wyatt before the action of ejectment was commenced.

Mr Justice Burton said, that it did not appear on the affidavits how Mr Wyatt became the tenant in possession; and that, if he claimed to be tenant holding under Mrs Levy, she was the proper person to defend the action.

His Honor Mr Justice Willis read through the evidence given on the trial.

Mr Windeyer contended that the facts, contained in the affidavits put in by the other side, were not material; and if they were considered material by the Court, it would give Mr Wyatt an opportunity of coming in and answering them, by numerous affidavits, which contradicted almost every fact stated on the affidavit of Mr Holt.  He thought that Mr Wyatt's right ought not to be attacked upon affidavit alone.

Mr Justice Burton said, that Mr Windeyer overlooked the affidavit of Mr Smith, who went to the Theatre and found it shut up, when he proceeded to Mrs Levy's and furnished her with a copy of the declaration.

Mr Windeyer said, that he was prepared to shew that the other side were in full possession of the fact of Mr Wyatt's being in possession of the Theatre, before the action was commenced.  Here was an underletting to a second party with the knowledge of the head landlord, which he was prepared to show on affidavit, if allowed to do so by the Court.  He would state to the Court, that copies of these affidavits had been tendered to the other side, and they had refused to receive them.

Mr Justice Burton said that the main feature in the case was, whether Mr Wyatt was or was not the tenant in possession.

Mr Windeyer said that Mr Wyatt swore to that on his affidavit -- and went further, by stating that James Holt, the head landlord, was acquainted with it.

Mr Justice Willis said that Mr Holt had been before the Court on the trial, and had undergone a cross-examination, and he did not think his testimony ought to be attacked in his absence, when he could not answer for himself.

Mr Windeyer contended that he was authorised to put in confirmatory affidavits, but although he could not put in affidavits to make a fresh case; the affidavits he now tendered were merely confirmatory.

The Attorney-General objected to the affidavits being received.  If the other side were allowed to put in confirmatory affidavits, he (the Attorney-General) must be allowed to put in affidavits confirmatory of his affidavits, which would be altogether irregular.  The rule nisi had not been obtained by surprise.  The parties had full notice, and ought to have come before the Court prepared.

Mr Windeyer said the Attorney-General's remarks were very reasonable, but there was a rule decided solemnly in the Court of King's Bench; and however plausible Mr Attorney's remarks might be, they could not overturn a positive rule.  (Mr Windeyer quoted, from Tidd's Practice, the authority for introducing confirmatory affidavits.)  He thought the Court would not throw the applicant out of Court, by deciding that he could not to bring in confirmatory affidavits.  No party, who confined himself to the truth in his original affidavits, could anticipate that contradictory affidavits would be got up against him; and if he was not allowed to support his affidavit by confirmatory matter, he would, in a manner, be thrown out of Court.

The Court was of opinion that Mr Windeyer had not selected the right time for his application to introduce supplementary affidavits.  He had made his motion upon affidavits which ought to have set forth the whole of his case, on which he intended to stand.  In this case, Mr Windeyer had heard the whole of the other case before he made his application, and if he were allowed to file confirmatory affidavits, the other party would be entitled to the same course, which would extend a cause ad infinitum, and would be attended with the greatest inconvenience.  If it appeared to the Court that very extraordinary matter was put forth, which the Court had reason to discredit, in that case the Court might interpose, and allow affidavits, but it must be at the proper time.  In this case the application was made at the wrong time.

Mr Windeyer said he would withdraw his application.  Rule discharged with costs.



[ 1]See also Australian, 25 September 1838; Sydney Gazette, 25 September 1838.

[ 2]See also Sydney Herald, 8 October 1838; Sydney Gazette, 9 October 1838.

Published by the Division of Law, Macquarie University