Cowell v Rosehill Racecourse Company Limited [1937] HCA 17

Cowell v Rosehill Racecourse Company Limited [1937] HCA 17

A paid licence to enter and remain on land for an event, even with a contractual promise not to revoke, does not create a proprietary interest in land at common law or in equity. Such a licence is revocable, and upon revocation, remaining constitutes trespass justifying ejection. Equity does not preclude the revocation or provide absolute relief merely because of an agreement not to revoke; damages may be a remedy for breach of contract, but not the right to remain. The decision in Hurst v. Picture Theatres Ltd. should not be followed in this context in New South Wales.

Parties
Appellant/plaintiff: Albert Boesenberg Cowell; Respondent/defendant: The Rosehill Racecourse Co. Ltd.
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment on Appeal From Judgment on Demurrer in Supreme Court of New South Wales
Outcome
Appeal dismissed
Legal Topics
Licence and Revocation, Equitable Replication, Trespass and Assault, Remedies – Injunction and Damages, Common Law/equity Interface
Contract Law Equity Torts Property Law Civil Procedure Licence and Revocation Equitable Replication Trespass and Assault +2 more

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Parties

Albert Boesenberg Cowell

Appellant/plaintiff

The Rosehill Racecourse Co. Ltd.

Respondent/defendant

Procedural Posture

Appeal / Judgment on Appeal From Judgment on Demurrer in Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a paid licence to enter and remain on a racecourse is revocable at law or in equity before the conclusion of the event for which it was purchased
  2. 2 Whether an agreement not to revoke such licence creates a proprietary interest or only a contractual one
  3. 3 Whether an equitable replication based on a promise not to revoke the licence prevents the licensor from ejecting the licensee

Ratio Decidendi

A paid licence to enter and remain on land for an event, even with a contractual promise not to revoke, does not create a proprietary interest in land at common law or in equity. Such a licence is revocable, and upon revocation, remaining constitutes trespass justifying ejection. Equity does not preclude the revocation or provide absolute relief merely because of an agreement not to revoke; damages may be a remedy for breach of contract, but not the right to remain. The decision in Hurst v. Picture Theatres Ltd. should not be followed in this context in New South Wales.

Court Disposition

Appeal dismissed

Orders

  • Judgment for the respondent on the demurrer
  • Appellant to pay costs