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

Windsor v. Murphy [1847] NSWSupC 59

Macdermott and Moffit v. Veitch


tenancy, Recovery of Tenemants Act

Police Magistrates

September 1847

Source: Sydney Morning Herald, 20 September 1847, in Supreme Court Collection, Vol. 2, p. 14

RECOVERY OF TENEMENTS ACT. ---Two cases under this Act were adjudicated on Friday, at the Police Office, Messrs. Windeyer and Dawes occupying the Bench. The first was an application by Mrs. Leonora Windsor, to recover possession of certain premises at Lane Cove, known as "Woodhouse's horse paddock," from a person named Patrick O'Brien Murphy, the term of whose tenancy determined by effluxion of time, on the 25th August last. Mr. Nichols appeared for the complainant, and called a witness who proved the service of the notice on the defendant, as also the memorandum or lease under which the defendant acquired possession; and that he now overheld the premises notwithstanding they had been demanded of him. Mr. Nichols then called upon the defendant to show, to the satisfaction of the justices, "reasonable cause" why possession should not be given up to the owner. Mr. Murphy appeared in person, and said that he only wished to retain so much of the paddock as he had planted with potatoes until they were fit for digging, for which he was willing to pay a reasonable rent; or he would be satisfied if he were paid the expense he had incurred in planting. The Bench held that, knowing as defendant must that his crop [sic] could not have arrived at its growth during the term of his lease, he had shown no reasonable cause why the owner should not be put in possession; and ordered a warranty to issue to put the complainant in possession, by force if needful, within fourteen days.

The next case was that of Henry Macdermott and William Moffit, executors to the will of the late Richard Brownlow, against William Veitch. This case differed from the former, inasmuch as the title of the complainants to the property accrued subsequently to the occupation thereof by the defendant. The premises are situated at Queen-street, Surry Hills, and consisted of a piece of land, with a stable and coach-house erected thereon, and a foundation for a building. The defendant was allowed by the late Mr. Brownlow to go in as tenant upon sufferance, paying no rent thereof; and by his will the property had been devised to complainants in trust for the family of the testator. On possession being demanded by the executors, defendant was abusive, and said, as Mr. Brownlow had executed no will, he had as good a right to the premises as they. Mr. Johnson, for the executors, proved the preliminary proceedings required by the Act, the right of the executors by the will of the deceased - his death being proved by Mr. Thurlow --- a will, purporting to be his, having been procured by Mr. Hutchinson from the Registry Office of the Supreme Court, and proved by Mr. G. R. Nichols, one of the attesting witnesses thereto, as that of the late Richard Brownlow --- and that he still refused to surrender the premises. The defendant being called upon to show cause against the application, his attorney, Mr. Yarnton, took several technical objections to the proceedings, which, however, the Bench overruled. No cause was set up on the merits of the case, and the Bench ordered a warrant to issue to put the complainants in possession, by force if needful --- within fourteen days.

Published by the Division of Law, Macquarie University