Mathieson v Burton

124 CLR 1

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(Judgment by: BARWICK CJ)

Between: MATHIESON
And: BURTON

Court:

Judges:
Barwick CJMcTiernan J
Menzies J
Windeyer J
Gibbs J

Subject References:
Leases and tenancies
Prescribed premises
Death of lessee
Statutory right of adult child resident to continue possession
Whether repeal

Legislative References:
Landlord and Tenant (Amendment) Act 1948 (NSW) - s 83A(1)(b)

Hearing date: SYDNEY 4 November 1970
Judgment date: 4 March 1971

MELBOURNE

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Judgment by:
BARWICK CJ

On 14th September 1958 Patrick O'Brien, then a lessee of prescribed premises within the meaning and operation of s. 83 of the Landlord and Tenant (Amendment) Act, 1948 (N.S.W.), died. His married daughter, an only child, a respondent to this appeal, and her husband, formerly a respondent to this appeal but now deceased, then resided with her father in the prescribed premises and on his death remained in possession of them.

Section 83A (1) and (2) inserted in the Landlord and Tenant (Amendment) Act by s. 3 (e) of the Landlord and Tenant (Amendment) Act, 1952 as enacted was in the following terms:

"83A.(1)

Where a lessee of prescribed premises dies, and

(a)

the spouse of the lessee resided with the lessee immediately before the death of the lessee and is actually in possession of the premises immediately after the death of the lessee; or

(b)

where the spouse of the lessee was not so residing or is not so in possession or the lessee was not married at the date of his death, a child of the lessee (being a child of or over the age of twenty-one years) so resided and is so in possession,

such spouse or child, as the case may be, shall, subject to subsection two of this section and until probate or letters of administration of the estate of the deceased lessee are granted, have the like right to continue in possession of the premises as the deceased lessee would have had if he had not died.

In this subsection `child of the lessee' means, where more than one child of the lessee so resided and is so in possession, the elder or eldest of such children.

(2)

Proceedings may be taken against such spouse or child, ... for the recovery of possession of the premises from him in accordance with the provisions of this Act as if he were a lessee of the premises.

(3)

Nothing in this section affects any right which such spouse or child may have upon the grant of probate or letters of administration to continue in possession of the premises."

By the Landlord and Tenant (Amendment) Act, 1968 s. 83A was amended in a number of respects. In some instances, as for example in relation to par. (d) of sub-s. (1), which had been inserted by the Landlord and Tenant (Amendment) Act, 1964, the amendment took the form of a repeal-the paragraph was omitted. But in other instances of which par. (b) of the subsection is one, the amendment took the form, not in terms of a repeal, but of a mere addition of words to those of the existing paragraph.

Section 4 (h) of the 1968 amending Act provided that

"The Landlord and Tenant (Amendment) Act, 1948 as subsequently amended, is further amended-

(i)

by inserting in paragraph (b) of subsection one of section 83A after the word `years' the words `who, at the date of the lessee's death, was a protected person or was in receipt of a pension under the Social Services Consolidation Act 1947 (as amended by subsequent Acts) of the Parliament of the Commonwealth';

(ii)

by inserting at the end of the same paragraph the word `or';

(iii)

by omitting from paragraph (c) of the same subsection the words `a brother or sister, or the mother or father', and by inserting in lieu thereof the words `the father or mother';

(iv)

by omitting from the same paragraph the word `or' where lastly occurring;

(v)

by omitting paragraph (d) of the same subsection;

(vi)

by omitting from the same subsection the words `brother or sister or the father or mother or other person, as the case may be' and by inserting in lieu thereof the words `or the father or mother';

(vii)

by omitting from subsection (1A) of the same section the symbols and words' `(c) or (d)' and by inserting in lieu thereof the word and symbols `or (c)';"

The female respondent is still in possession of the prescribed premises. On 30th April 1969 the appellant commenced in the Supreme Court of New South Wales an action in ejectment against the respondent in which the female respondent entered an appearance and filed particulars of defence. By these particulars she relied on the facts I have related, there having been no grant of probate or letters of administration of the estate of her father. She then claimed the benefit of s. 83A (1) (b) and asserted that because of the provisions of the Landlord and Tenant (Amendment) Act, s. 69, the Supreme Court was not competent to hear and determine the matter.

Upon an application by the appellant to strike out the particulars of defence, counsel for the appellant conceded that the Supreme Court's decision in Boyce v Hughes ^[F1] covered the case adversely to his client and that that decision bound his Honour. The judge in chambers acted on this concession and dismissed the appellant's application to strike out the particulars of defence. This Court gave the appellant special leave to appeal against this order.

Upon this appeal it has been submitted that s. 4 (h) (i) of the Landlord and Tenant (Amendment) Act, 1968 effected a repeal of s. 83A (1) (b) of the Landlord and Tenant (Amendment) Act, 1948-1952 and that the right to continue in possession to which that paragraph refers did not constitute a right or privilege within the meaning of s. 8 (b) of the Interpretation Act of 1897 (N.S.W.). It was submitted that Boyce v Hughes ^[F2] was erroneously decided and should be overruled.

The appellant's counsel made an alternative submission that upon its true construction aided as counsel claimed by the general tendency of amendments of the Landlord and Tenant (Amendment) Act, 1948 made by the Landlord and Tenant (Amendment) Act, 1968, s. 4 (h) (i) terminated any existing right of children of a deceased lessee in the position of the female respondent unless they could qualify under the terms of the amended paragraph of s. 83A (1).

I would first emphasize that s. 4 (h) (i) in terms does no more than add words to the existing provision. It does not in terms repeal that provision. It amends that provision as from the date of the commencement of the amending act. The condition of the operation of the amended provision is "where the lessee of prescribed premises dies". That can only mean, in my opinion, where a lessee of prescribed premises dies after the commencement of the amending act just as in the subsection when originally introduced the condition was that the lessee should die after the commencement of the act introducing the subsection. Section 4 (h) (i) as now amended cannot be read, in my opinion, as making its operation depend upon the condition that the lessee should have died after the commencement of the amending Act of 1952.

Plainly, in my opinion, the amending Act of 1968 modified for the future as from its commencement the provisions of s. 83A (1). It did so by providing that in the case of a lessee dying after its commencement, there should be additional qualifications to those contained in the existing provisions for a child of the lessee to be entitled to a right to possession of the same kind as that enjoyed by the deceased lessee. In terms it says nothing as to the operation of the section which had already taken place in respect of lessees who had died after the commencement of the 1952 amendment and before its commencement. Nor, in my opinion, is it necessary to imply a repeal of the 1952 provisions in order to give effect to the 1968 amendment. I see no difficulty in the continued operation of the provisions of the 1952 Act with respect to children of lessees who died after the commencement of the amendment effected by that Act and before the commencement of the amendments effected by the Act of 1968. These latter amendments do not purport to have any retrospective operation and I can see no ground to imply such an operation. Consequently we are not concerned here to decide in relation to a repealed provision whether rights acquired under it fall within the terms of s. 8 (b) of the Interpretation Act of 1897. It follows that, in my opinion, the case is not concerned with the operation of s. 8 of the Interpretation Act and that it is not governed by the decision of the Supreme Court in Boyce v Hughes. ^[F3]

However, if contrary to my own opinion, the Act of 1968 did repeal the relevant provisions of the Act of 1954, Boyce v Hughes ^[F4] was, in my opinion, rightly decided. I am in respectful agreement with the reasons of Sugerman P. for so deciding.

On the death of her father the female respondent acquired by virtue of s. 83A (1) as it then stood the same right to continue in possession of the prescribed premises as her deceased father had had but only until the grant of representation of his estate and subject, as was the right of the father, to the provisions of the Act as to the making of orders for possession.

It was submitted that if it should be held that that respondent now has any right to possession of the prescribed premises, there would be no means by which the appellant could obtain possession. This argument was based on the view that s. 83A (2) as it now stands could only apply to the case of a child who had all the qualifications specified in sub-s. (1) as amended and that as admittedly the female respondent was not so qualified, sub-s. (2) could not apply to her case. But in my opinion, the right to obtain possession of the prescribed premises in the possession of a child of a deceased does not derive from s. 83A (2) but from Pt III of the Act. The function of s. 83A (2) is to deem the child in possession to be a lessee for the purposes of that Part. The provisions of Pt III will therefore be available for the recovery of possession from a child in possession at the time of the death of a lessee parent, whether that child's rights are derived from the operation of the 1952 amendment of the Act or from the 1968 amendment. It will be the provisions of Pt III which are in operation at the time the proceedings under the Act to obtain possession are being heard which will govern the lessor's right to recover possession.

In my opinion the appeal should be dismissed.