Bentley v Benbow [1957] HCA 70

Bentley v Benbow [1957] HCA 70

The exception in s.62(5)(h) applies only where the original acquisition was for user as a parsonage and this intention remains unfulfilled due to the lessor being out of possession; moreover, the vacant land acquired in 1856 and later built upon is not 'premises' as defined by the Act, and the prescribed ground cannot be invoked to determine the tenancy in these circumstances.

Parties
Appellant: Richard John Bentley; Applicant: The Presbyterian Church (N.S.W.) Property Trust; Respondent: Maude Benbow; Respondent: E. J. Gibson
Jurisdiction
Australia
Procedural Posture
Appeal / High Court Judgment on Appeal From Supreme Court of New South Wales
Outcome
Appeal dismissed with costs
Legal Topics
Recovery of Possession, Construction of Statutory Provisions, Premises Acquired for Religious Use
Property Law Landlord and Tenant Recovery of Possession Construction of Statutory Provisions Premises Acquired for Religious Use

Case Brief

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Parties

Richard John Bentley

Appellant

The Presbyterian Church (N.S.W.) Property Trust

Applicant

Maude Benbow

Respondent

E. J. Gibson

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether premises can be recovered where acquired for use as parsonage under s.62(5)(h) Landlord and Tenant (Amendment) Act 1948-1954 (N.S.W.)
  2. 2 Whether intention to use as parsonage must be continuing and unfulfilled
  3. 3 Meaning of 'premises' under the Act

Ratio Decidendi

The exception in s.62(5)(h) applies only where the original acquisition was for user as a parsonage and this intention remains unfulfilled due to the lessor being out of possession; moreover, the vacant land acquired in 1856 and later built upon is not 'premises' as defined by the Act, and the prescribed ground cannot be invoked to determine the tenancy in these circumstances.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed
  • Appellant to pay respondent's costs