Title | Radaich v Smith (lease v licence) |
---|---|
Author | EMILY WARD |
Course | Property Law |
Institution | Macquarie University |
Pages | 2 |
File Size | 61.2 KB |
File Type | |
Total Downloads | 93 |
Total Views | 137 |
Case Note...
CASE BRIEF TEMPLATE Name of Case
Radaich v Smith
Citation and Court
Radaich v Smith [1959] HCA 45
Material Facts
Legal Issue
The parties entered in to an agreement which was executed as a deed. The agreement allowed Radaich to occupy a lock up shop for a period of five years, where she would conduct a business as a milk bar. The document was labelled on its face as a license agreement and at no point were the words lease, lessor or lessee used. Radaich applied for a fair rent to be determined and Smith maintained that as the agreement constituted a license and not a lease, there was no jurisdiction under which a fair rent could be determined. If the agreement amounted to a lease, a magistrate of the Fair Rents Board would hold jurisdiction to determine a fair rent for the premises. Radaich argued she held a lease in substance even though the agreement was labelled a license, because it effectively amounted to a right to exclusive possession for a term. Smith argued the deed amounted to an agreement to create a license only. At no point did the deed refer to a lessor, a lessee or a lease and, as such, it could not amount to a lease and the magistrate, therefore, had no jurisdiction to determine a fair rent.
Relevant Law
Application of Law to the Facts
The agreement was found to be a lease and the magistrate had jurisdiction to determine a fair rent. Whether an agreement constituted a lease or a license depended on whether, if properly interpreted, the deed created in substance exclusive possession of the property for a term. Regard should be had to the substance and effect of the document itself, and not the label given to it by the parties.
Conclusion...