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

Greene v. Kellick [1841] NSWSupC 111

contract, breach of  - tenancy

Supreme Court of New South Wales

19 May 1841

Source: Australian, 22 May 1841

            This was a breach of agreement. The defendant owns a house in Phillip-street, of which Green has a lease. In the agreement, it was contracted by the defendant that a verandah should be erected. It was impressed on the minds of the assessors, that the defendant was a timber merchant, and therefore timber work must with him, be a matter of no moment. A witness was brought forward to prove that the building of such a verandah as specified in the agreement would cost £200. The assessors gave a verdict for the plaintiff, £30 and costs.

Stephen J., 16 November 1841

Source: Sydney Herald, 17 November 1841[1]

This was an action brought to recover damages from the defendant for omitting to put up a balcony or verandah, according to the stipulations of an agreement en[t]ered into between the plaintiff and the d[e]fend[a]nt.

Mr. Broadhurst appeared for the plaintiff; and Mr. Windeyer and Mr. Michie for the defendant.

Mr. Broadhurst stated that the circumstances of the plaintiff's claim were as follows: - some time back the plaintiff, a fencing and dancing master, agreed to rent a housebelonging to the defendant, in Philip-street: a written agreement had been entered into between the parties, one part of which provided that the defendant shou[l]d, within a certain period therein limited, put up a varandah or balcony to the house in question, similar to one attached to the house of the late Judge Kinchela. The balcony had not been put up, and for this breach of the agreement the present action was brought. The defendant had pleaded, a judgment recovered for the same cause of action, and to thisple[a] the plaintiff had now assigned, that he had bro[ugh]t his action for other causes than those ple[ade]d to in the defendant's plea.

            Mr. Broadhurst, for the plaintiff, called Mr. Wallis, who stated that he knew the premises in question, that there was no balcony attached to them, that he was present at the last action, and recollected Judge Burton directing the assessors only to give the plaintiff a verdict commensurate to the inconvenience he might have suffered from the want of the balcony down to the time of the action; as the defendant might, perhaps, put up the balcony the following week. This witness also thought that the premises in question would be of much more value to the plaintiff by the addition of a balcony, on account of his being a fencing and dancing master. The agreement was put in and proved, which Mr. Wallis, on cross-examination, admitted to be the same as had been sued upon in the last action. This was the plaintiff's case. The defendant's counsel submitted, that upon the state of the pleadings, the plaintiff could not recover. He admitted that a judgment had been recovered, on the same cause of action, and was therefore bound to prove some other cause of action, in order to maintain his suit, which he had not done. Mr. Bradley, the chief clerk, produced the record of the former action, setting forth the particulars of the former suit, which appeared to be identical with he circumstances of the present one.

His Honor Mr. Justice Stephen left it to the Assessors to say, whether the former action was for the same causes of action as the present one, viz., whether the plaintiff in the former suit had damages only for the deprivation of the balcony for a particular period, or whether the damages had been intended as an entire and satisfactory compensation for not having added a balcony to the plaintiff's house.

The Assessors found for the plaintiff - damages £17 10s.

Attorney for the plaintiff, Hayward. For the defendant, Chambers and Thurlow.


[1]              See also Sydney Gazette, 18 November 1841.


Published by the Division of Law, Macquarie University