Hare v Terry [1918] HCA 28

Hare v Terry [1918] HCA 28

The appellant, having acquired the lease by registered transfer with the original lessor's consent, occupied the premises under or by virtue of the original lease of 16 June 1914, and was entitled under section 70 of the Licensing Acts Further Amendment Act (No. 2) 1915 (S.A.) to surrender the lease. The terms of the transfer and consent did not amount to a waiver of this statutory right.

Parties
Plaintiff: Harriet Terry; Defendant: Charles Newton Hare
Jurisdiction
Australia
Judgment Date
22 May 1918
Procedural Posture
Appeal / High Court Judgment on Appeal From Supreme Court of South Australia
Outcome
Appeal allowed with costs. Judgment for the defendant with costs.
Legal Topics
Lease Surrender, Transferee Rights, Covenants in Leases, Waiver of Statutory Rights
Property Law Licensing Law Lease Surrender Transferee Rights Covenants in Leases Waiver of Statutory Rights

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Harriet Terry

Plaintiff

Charles Newton Hare

Defendant

Procedural Posture

Appeal / High Court Judgment on Appeal From Supreme Court of South Australia

Legal Issues

  1. 1 Whether the transferee of a lease is in occupation 'under or by virtue of' the original lease for the purposes of section 70 of the Licensing Acts Further Amendment Act (No. 2) 1915 (S.A.).
  2. 2 Whether the transferee's covenant in the memorandum of transfer or the conditions of the lessor's consent to transfer constituted a waiver or alteration of the statutory right of surrender.

Ratio Decidendi

The appellant, having acquired the lease by registered transfer with the original lessor's consent, occupied the premises under or by virtue of the original lease of 16 June 1914, and was entitled under section 70 of the Licensing Acts Further Amendment Act (No. 2) 1915 (S.A.) to surrender the lease. The terms of the transfer and consent did not amount to a waiver of this statutory right.

Court Disposition

Appeal allowed with costs. Judgment for the defendant with costs.

Orders

  • Appeal allowed with costs.
  • Judgment for the defendant with costs.