Barnard v Gorlin [1955] HCA 43

Barnard v Gorlin [1955] HCA 43

Premises are 'used solely as a dwelling house' if their sole use by occupants is residence, regardless of whether the head lessee is conducting a business of sub-letting; therefore, s. 62a does not apply in such circumstances.

Parties
Appellant: Kenneth Barnard; Respondent: Solomon Gorlin
Jurisdiction
Australia
Judgment Date
11 August 1955
Procedural Posture
Appeal / High Court Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed with costs; rule of Supreme Court varied; order of the District Court discharged.
Legal Topics
Notice to Quit, Dwelling House, Assignment of Lease, Sub Letting, Prohibition Order
Landlord and Tenant Notice to Quit Dwelling House Assignment of Lease Sub Letting Prohibition Order

Case Brief

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Parties

Kenneth Barnard

Appellant

Solomon Gorlin

Respondent

Procedural Posture

Appeal / High Court Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the premises were 'used solely as a dwelling house' under s. 62a of the Landlord and Tenant (Amendment) Act 1948-1952 (N.S.W.) and thus excluded from the operation of that section
  2. 2 Whether the right of appeal to the High Court existed as of right

Ratio Decidendi

Premises are 'used solely as a dwelling house' if their sole use by occupants is residence, regardless of whether the head lessee is conducting a business of sub-letting; therefore, s. 62a does not apply in such circumstances.

Court Disposition

Appeal dismissed with costs; rule of Supreme Court varied; order of the District Court discharged.

Orders

  • Appeal to High Court dismissed with costs
  • Rule of Supreme Court varied by inserting an order discharging the District Court order