Dalby v Gazzard [1949] HCA 36

Dalby v Gazzard [1949] HCA 36

A person let into possession by a lessee, without any legal right or title (such as a sub-lease or assignment), does not 'claim under the lessee' under regulation 30(6); thus, John Gazzard was not entitled to the protection against execution of the warrant.

Parties
Appellant: James Henry Dalby; Appellant: Ada Frances Dalby; Respondent: Sheila Gazzard; Respondent: John Gazzard
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Court of Petty Sessions Exercising Federal Jurisdiction; Special Leave Granted by High Court
Outcome
Appeal allowed as against John Gazzard; magistrate's order not to execute the warrant against him discharged; costs to be paid by John Gazzard.
Legal Topics
Weekly Tenancy Termination, Protected Person Possession, Sub Letting and Assignment, Enforcement of Warrants for Possession
Landlord and Tenant Statutory Interpretation Weekly Tenancy Termination Protected Person Possession Sub Letting and Assignment Enforcement of Warrants for Possession

Case Brief

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Parties

James Henry Dalby

Appellant

Ada Frances Dalby

Appellant

Sheila Gazzard

Respondent

John Gazzard

Respondent

Procedural Posture

Appeal / Appeal From Court of Petty Sessions Exercising Federal Jurisdiction; Special Leave Granted by High Court

Legal Issues

  1. 1 Does a person let into possession by a lessee, without landlord's consent, qualify as 'claiming under the lessee' under reg. 30(6) of the National Security (War Service Moratorium) Regulations?
  2. 2 What rights are conferred upon persons in possession where the tenancy has been lawfully determined?
  3. 3 What is the proper scope of protection available to a 'protected person' under the regulations?

Ratio Decidendi

A person let into possession by a lessee, without any legal right or title (such as a sub-lease or assignment), does not 'claim under the lessee' under regulation 30(6); thus, John Gazzard was not entitled to the protection against execution of the warrant.

Court Disposition

Appeal allowed as against John Gazzard; magistrate's order not to execute the warrant against him discharged; costs to be paid by John Gazzard.

Orders

  • So much of the order as directed that the warrant of possession be not executed against John Gazzard is discharged.
  • John Gazzard to pay the costs of the appeal.