Glacken v Tooth and Company Limited [1935] HCA 68

Glacken v Tooth and Company Limited [1935] HCA 68

A covenant that prohibits claims under 'present legislation' does not extend to preclude the lessee from applying for a determination of rent under subsequently enacted legislation. Statutory rights conferred after the contract cannot be excluded through contractual provisions referring only to 'present' or then-existing laws. Therefore, the lessee was entitled to apply under the Landlord and Tenant (Amendment) Act 1932-1935 (N.S.W.).

Parties
Appellant, Plaintiff: Glacken; Respondent, Defendant: Tooth and Company Limited
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Supreme Court of New South Wales
Outcome
appeal dismissed
Legal Topics
Lease, Rent Determination, Contracting Out, Statutory Rights, Interpretation of Contractual Terms
Landlord and Tenant Lease Rent Determination Contracting Out Statutory Rights Interpretation of Contractual Terms

Case Brief

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Parties

Glacken

Appellant, Plaintiff

Tooth and Company Limited

Respondent, Defendant

Procedural Posture

Appeal / Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a covenant in a lease agreement not to make a claim for rent reduction or take advantage of 'any present legislation State or Federal' precluded the lessee from applying for a rent determination under subsequent legislation (Landlord and Tenant (Amendment) Act 1932-1935 (N.S.W.))

Ratio Decidendi

A covenant that prohibits claims under 'present legislation' does not extend to preclude the lessee from applying for a determination of rent under subsequently enacted legislation. Statutory rights conferred after the contract cannot be excluded through contractual provisions referring only to 'present' or then-existing laws. Therefore, the lessee was entitled to apply under the Landlord and Tenant (Amendment) Act 1932-1935 (N.S.W.).

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.