Graham v Markets Hotel Pty Ltd [1943] HCA 8

Graham v Markets Hotel Pty Ltd [1943] HCA 8

The dismantling and failure to yield up the demised premises with a lavatory was a breach of the covenant to repair and yield up in repair. The measure of damages is the cost of providing equivalent sanitary accommodation, including necessary and consequential alterations, but not the cost of unrelated improvements. Section 133a of the Conveyancing Act does not bar recovery, as the relevant alterations were necessitated by the breach and not independently contemplated.

Parties
Appellants; Plaintiffs: Florence Graham and Frank Graham; Respondent; Defendant: The Markets Hotel Pty. Ltd.
Jurisdiction
Australia
Procedural Posture
Appeal From Supreme Court of New South Wales (full Court) / High Court of Australia Judgment
Outcome
Appeal allowed; verdict for plaintiffs for £100 set aside; action remitted to Herron J. for reassessment of damages; both parties may call further evidence; respondent to pay costs of appellants in Supreme Court.
Legal Topics
Sub Lease, Covenant to Repair, Licensed Premises, Breach of Covenant, Measure of Damages
Landlord and Tenant Property Law Sub Lease Covenant to Repair Licensed Premises Breach of Covenant Measure of Damages

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Parties

Florence Graham and Frank Graham

Appellants; Plaintiffs

The Markets Hotel Pty. Ltd.

Respondent; Defendant

Procedural Posture

Appeal From Supreme Court of New South Wales (full Court) / High Court of Australia Judgment

Legal Issues

  1. 1 Whether the removal of lavatory facilities and failure to yield up the premises with adequate sanitary accommodation constituted breach of covenant to repair and yield up in repair.
  2. 2 What is the proper measure of damages for such breach under the covenant to repair and under s. 133a of the Conveyancing Act 1919-1939 (N.S.W.).

Ratio Decidendi

The dismantling and failure to yield up the demised premises with a lavatory was a breach of the covenant to repair and yield up in repair. The measure of damages is the cost of providing equivalent sanitary accommodation, including necessary and consequential alterations, but not the cost of unrelated improvements. Section 133a of the Conveyancing Act does not bar recovery, as the relevant alterations were necessitated by the breach and not independently contemplated.

Court Disposition

Appeal allowed; verdict for plaintiffs for £100 set aside; action remitted to Herron J. for reassessment of damages; both parties may call further evidence; respondent to pay costs of appellants in Supreme Court.

Orders

  • Order of Full Court set aside.
  • Verdict of Herron J. for £100 set aside.