HIGH COURT OF AUSTRALIA
Dixon C.J., McTiernan, Taylor, Menzies and Windeyer JJ.
RADAICH v. SMITH
(1959) 101 CLR 209
7 September 1959
Landlord and Tenant
Landlord and Tenant—Lease or licence—Test—Right to exclusive possession.
Decisions
September 7.
The following written judgments were delivered:-
DIXON C.J. In my opinion this appeal should be allowed. I have had the advantage of reading the
reasons prepared by the other members of the Court and I have nothing to add to them. (at p213)
McTIERNAN J. Maria Radaich appeals to this Court from the finding of the Supreme Court of
New South Wales upon a case stated by a magistrate of the Fair Rents Board. The magistrate found
that a deed, made between the appellant and the respondents (George William Edward Smith and
Ada Smith), constituted a lease and that he therefore had jurisdiction to determine a fair rental for
the premises specified therein. Brereton J., exercising the jurisdiction of the Supreme Court over the
case stated, held that the deed created no lease but a mere licence, and, consequently, that the Fair
Rents Board had no jurisdiction in the matter. (at p214)
2. Neither party denies that all the terms of the agreement are embodied in their deed. The deed
contains ten clauses. In form and matter, it resembles an ordinary lease; it contains, inter alia, a
covenant that the "licensors" shall not unreasonably disallow an assignment of the "licence". Another
clause, cl. 9, confers an option of renewal. The words "lease", "lessor" and "lessee", however, are
entirely excluded from the document, and the term "licence", and its appropriate mutations, are
sedulously applied to the rights purported to be created. This fact is, of course, far from conclusive
in favour of the respondents. It is the substance of the deed that matters. As Denning L.J. said in
Facchini v. Bryson (1952) 1 TLR 1386 " . . . the parties cannot by the mere words of their contract
turn it into something else. Their...