Massart v Blight [1951] HCA 20

Massart v Blight [1951] HCA 20

The magistrate properly exercised statutory discretion under s. 70(1)(a) in refusing to make an order for possession, having found that the greater hardship lay with the tenant Massart. Section 62(5)(b) does not provide grounds for possession against an assignee in possession where the breach was by the assignor and the lease contains a covenant against assignment; the relevant statutory amendments bar such proceedings, and none of the prescribed statutory grounds provide a way to recover possession in these circumstances.

Parties
Appellant / Defendant / Assignee / Tenant: Alfred John Massart; Respondents / Complainants / Landlords / Lessors: Gertrude Lillian Blight and Charles Alfred Blight
Jurisdiction
Australia
Judgment Date
10 May 1951
Procedural Posture
Appeal / Final Judgment on Appeal to High Court of Australia From Supreme Court of New South Wales
Outcome
Appeal allowed with costs. Order of the Supreme Court discharged; Order of the magistrate restored.
Legal Topics
Assignment of Lease, Notice to Quit, Covenant Against Assignment, Discretion of Magistrate, Recovery of Possession, Hardship Considerations
Landlord and Tenant Property Law Assignment of Lease Notice to Quit Covenant Against Assignment Discretion of Magistrate Recovery of Possession Hardship Considerations

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Parties

Alfred John Massart

Appellant / Defendant / Assignee / Tenant

Gertrude Lillian Blight and Charles Alfred Blight

Respondents / Complainants / Landlords / Lessors

Procedural Posture

Appeal / Final Judgment on Appeal to High Court of Australia From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a landlord may recover possession under s. 62(5)(b) of the Landlord and Tenant (Amendment) Act 1948-1949 (NSW) from an assignee where an assignment occurred in breach of covenant against assignment
  2. 2 Whether hardship to the assignee (tenant) arising from breach of covenant may be taken into account under s. 70(1)
  3. 3 Interpretation of statutory provisions relating to notice to quit where assignment occurs in breach of covenant

Ratio Decidendi

The magistrate properly exercised statutory discretion under s. 70(1)(a) in refusing to make an order for possession, having found that the greater hardship lay with the tenant Massart. Section 62(5)(b) does not provide grounds for possession against an assignee in possession where the breach was by the assignor and the lease contains a covenant against assignment; the relevant statutory amendments bar such proceedings, and none of the prescribed statutory grounds provide a way to recover possession in these circumstances.

Court Disposition

Appeal allowed with costs. Order of the Supreme Court discharged; Order of the magistrate restored.

Orders

  • Appeal allowed with costs.
  • Order of the Supreme Court (NSW) discharged.