Massart v Blight [1951] HCA 20

Massart v Blight [1951] HCA 20

A landlord cannot recover possession under s. 62(5)(b) of the Landlord and Tenant (Amendment) Act 1948-1949 from an assignee where the breach was committed by an assignor and the lease contains a covenant against assignment; further, the magistrate’s discretion to refuse an order for possession on hardship grounds should not be overturned in the absence of legal error.

Jurisdiction
Australia
Procedural Posture
Appeal / Final Judgment
Outcome
appeal allowed
Legal Topics
['assignment of Lease' 'possession Proceedings' 'breach of Covenant' 'statutory Interpretation' 'hardship in Eviction']
['landlord and Tenant'] ['assignment of Lease' 'possession Proceedings' 'breach of Covenant' 'statutory Interpretation' 'hardship in Eviction']

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether a landlord can recover possession under s. 62(5)(b) of the Landlord and Tenant (Amendment) Act 1948-1949 from an assignee where a lease contains a covenant against assignment without consent' 'Whether hardship under s. 70(1) justified refusal to make an order for recovery of possession even where breach of covenant was established']

Ratio Decidendi

A landlord cannot recover possession under s. 62(5)(b) of the Landlord and Tenant (Amendment) Act 1948-1949 from an assignee where the breach was committed by an assignor and the lease contains a covenant against assignment; further, the magistrate’s discretion to refuse an order for possession on hardship grounds should not be overturned in the absence of legal error.

Court Disposition

appeal allowed

Orders

  • ['Order of the Supreme Court discharged' 'Order of magistrate restored' 'Appellant allowed costs']