Bentley v Benbow [1957] HCA 70

Procedural Posture

Appeal by Special Leave From an Order of the Full Court of the Supreme Court of New South Wales Prohibiting Further Proceedings on an Order for Possession / High Court Appeal

Legal Issues

1. 1 ['Whether premises formerly used as a manse but later let for residential use had been acquired for use as a parsonage, vicarage, presbytery or other like premises within s. 62 (5) (h) of the Landlord and Tenant (Amendment) Act 1948-1954.' 'Whether s. 62 (5) (h) applies where the purpose for which premises were allegedly acquired had previously been fulfilled and later abandoned, rather than remaining unfulfilled because the owner was out of possession.' 'Whether vacant land conveyed on trust for a church, schoolhouse and other connected buildings was acquired as premises for the purposes of s. 62 (5) (h).']

Ratio Decidendi

The appeal was dismissed because s. 62 (5) (h) did not apply to premises whose earlier use as a manse had been discontinued and whose religious-use purpose, if any, had been fulfilled and later abandoned. The statutory words "have been acquired for use as" refer to an unfulfilled acquisition purpose prevented by lack of possession, not to a remote historical purpose. In addition, the land was originally vacant land forming part of a larger trust parcel for several church-related objects and was not acquired as "premises" for the purposes of the Act; treating later construction of the manse as an acquisition of premises would distort the word "acquired".

Court Disposition

Appeal dismissed with costs.

Orders

• ['Appeal dismissed with costs.']