Radaich v Smith
101 CLR 209(Decision by: Menzies J)
Radaich v Smith
Court:
Judges:
Dixon CJ
McTiernan J
Taylor J
Menzies JWindeyer J
Subject References:
Leases and tenancies
Lease or licence
Test
Exclusive possession
Judgment date: 20 August 1959
SYDNEY
Decision by:
Menzies J
MENZIES J. The one question raised by this appeal is whether the appellant's occupation of a shop known as and situate at 83 Parriwi Road, Mosman, under and by virtue of a deed dated 29th May 1954 is as a licensee, as Brereton J. decided, or as a tenant of the respondents, as the appellant contends.
The deed is called a "license" (sic) and the parties thereto "licensors" and "licensee", and it was argued that not only did these descriptions in a formal document show the intention of the parties but also that the substance of its provisions justified these descriptions. When looked at as a matter of both form and substance, the deed seems to me to speak with two voices, but what I regard as decisive in favour of its creating the relationship of landlord and tenant is that it gives the "licensee" the right of exclusive possession of the premises for the term granted thereby.
The conclusion that it does this flows from the provisions which require the appellant to conduct a cafe and milk bar in the shop and, upon the expiration or sooner determination of the "license", to "give up possession of the said building occupied by her for the purpose of the said business". It is true that there is room for doubt about the meaning of the phrase "the said building" because, in the grant, the words used are "the sole and exclusive license and privilege to supply refreshments to the public admitted to premises situated at 81-83 Parriwi Road The Spit Mosman aforesaid and to carry on the business of a milk bar therein (hereinafter called the building) in such rooms as are shown in sketch contained in Schedule one annexed hereto", but from the case stated by the Fair Rents Board and the present respondents' notice of appeal to the Supreme Court, it seems clear that the sketch is of 83 Parriwi Road; indeed, in the notice of appeal the present appellant is described as of that address. My conclusion is that it is the premises 83 Parriwi Road which the "licensee" is to occupy during the term in which she is bound to carry on business, and of which at the end of the "license" she is bound to give up possession to the "licensor". These obligations to occupy a shop, to carry on a business there that needs plant and stock, and to give up possession at the end of the term, taken together, seem to me to require the conclusion that the occupier has, during the term, the right of exclusive possession. Counsel for the respondents did press us with the differences between the deed before us and that under consideration in Addiscombe Gardens Estate Ltd v Crabbe [F31] where the Court of Appeal decided that there was a lease rather than a licence because the grantees were entitled to exclusive occupation. The most significant difference relied upon was that there the grantees were to permit the owners to enter and inspect and it was pointed out that this was inconsistent with a general right to come upon the premises. This was, however, but one of the matters upon which the court relied and I do not think anything is to be gained by a point for point comparison of the deeds because the matters I have referred to satisfy me that it was intended that the appellant here should have the exclusive occupation of 83 Parriwi Road.
In my opinion the appeal should be allowed.