English Tenancy Law Case Study

COMMERCIAL TENANCY LAW IN AUSTRALIA

AJ BRADBROOK
CE CROFT

BUTTERWORTHS (1990)

[1.04] the doubt which has been created results from a series of English decisions given in the course of the 1950s and 1960s. In 1952 Denning LJ (as he then was), expressed the view that the test of exclusive possession was by no means decisive: Errington v Errington [1952] 1 All ER 149 at 297; [1952] 1 KB 290. His Lordship said that the difference between a tenancy and a licence was that in a tenancy an interest passed in the land, whereas in a licence it did not; that in distinguishing between a lease and a licence the test of exclusive possession was by no means decisive; that the matter was one of intention and
The court was there concerned with the question whether an agreement relating to the use of refreshment rooms was a lease or a licence. Unfortunately, not all members of the court dealt in terms with the question whether the grant of the right to exclusive possession was inconsistent with the creation of a mere licence. McTiernan J at 214, said that the true test of a supposed lease was whether exclusive possession was conferred upon the putative lessee and that the "exclusive possession" test had survived intact the criticism it received in Errington v Errington. Taylor J at 217 held that the effect of the instrument under consideration was to grant a right to exclusive possession and that in consequence it was "inevitable" that the instrument should be held to create a leasehold interest. His Honour
Except for Tasmania, all States have dispensed with the requirement for a seal, if the document bears the words "signed, sealed and delivered": NSW, s 38(3); Property Law Act 1958 (Vic) s 73A; Qld, s 45(2), 47; SA, s 41(4); WA, s 9(2), (4). Jordan CJ summarised the effect of the New South Wales requirements in Dockrill v Cavanagh (1944) 45 SR (NSW) 78; and see Enkelmann v Glissan (1982) NSW Cony R 55-084; Alcova Holdings Pty Ltd v Pandarlo Ply Ltd (SC, NSW (Bryson J) 2 May 1988, unreported). In relation to the Western Australian provisions, see Abjomson v Urban Newspapers Pty Ltd (SC, WA (Full Court) 2 December 1987, unreported), especially Kennedy J at pp 9-11 of his Honour's judgment; and Adamson v Hayes (1973) 130 CLR 276 at 298 (Walsh J) and 306 (Gibbs .0. Section 54(1) of the Property Law Act 1958 (Vic) (which reproduces s 2 of the Statute of Frauds) provides that