Barnard v Gorlin [1955] HCA 43

Barnard v Gorlin [1955] HCA 43

Because every occupant used the rooms exclusively for residence, the premises were used solely as a dwelling house; the appellant's business of sub-letting did not alter the character of the occupants' physical use of the premises, so the s. 62A order could not stand and the appeal failed.

Jurisdiction
Australia
Procedural Posture
Landlord and Tenant Appeal / High Court Appeal From the Full Court of the Supreme Court
Outcome
Appeal dismissed with costs; Supreme Court rule varied to include an order discharging the District Court judge's order.
Legal Topics
['assignment of Lease' 'notice to Quit' 'prescribed Premises' 'dwelling House' 'residential Subletting']
['landlord and Tenant' 'property Law'] ['assignment of Lease' 'notice to Quit' 'prescribed Premises' 'dwelling House' 'residential Subletting']

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Procedural Posture

Landlord and Tenant Appeal / High Court Appeal From the Full Court of the Supreme Court

Legal Issues

  1. 1 ['Whether premises comprising sub-let residential rooms were "premises used solely as a dwelling house" for the purposes of s. 62A of the Landlord and Tenant (Amendment) Act 1948-1952 N.S.W.' "Whether the appellant's business of sub-letting rooms meant the premises were used otherwise than as a dwelling house."]

Ratio Decidendi

Because every occupant used the rooms exclusively for residence, the premises were used solely as a dwelling house; the appellant's business of sub-letting did not alter the character of the occupants' physical use of the premises, so the s. 62A order could not stand and the appeal failed.

Court Disposition

Appeal dismissed with costs; Supreme Court rule varied to include an order discharging the District Court judge's order.

Orders

  • ['Rule of the Supreme Court varied by inserting therein, after the order that the appeal to that court be allowed, an order discharging the order of the District Court judge referred to in the notice of appeal to that court.' 'Otherwise rule affirmed and appeal to this Court dismissed with costs.']