Cowell v The Rosehill Racecourse Company Ltd
(1937) 56 CLR 605[1937] HCA 17
11 ALJ 32
[1937] ALR 273
(Judgment by: Starke J)
Between: Cowell - Plaintiff, Appellant
And: The Rosehill Racecourse Company Limited - Defendant, Respondent
Judges:
Latham CJ
Starke JDixon J
Evatt J
McTiernan J
Judgment date: 22 April 1937
Judgment by:
Starke J
The plaintiff's action was trespass for assault. Plea that the defendant was possessed of certain land, and that the plaintiff was trespassing, whereupon the defendant requested him to leave the land, which he refused to do, and thereupon the defendant removed him from the land, doing no more than was necessary for that purpose. A replication upon equitable grounds was pleaded to this plea. It was as follows:
"The plaintiff for reply on equitable grounds as to the defendant's ... plea says that on the day of the committing of the grievances alleged ... the defendant was about to conduct and was conducting a certain race meeting at which horse races were to be and were run on the said land under the control and management of the defendant, and thereupon in consideration of the sum of four shillings paid by the plaintiff to the defendant the defendant promised the plaintiff that it would permit and allow the plaintiff to enter upon the said land, and to attend at the said race meeting, and remain on the said land, and view all of the said horse races to be run thereat and for the consideration aforesaid the defendant gave to the plaintiff leave and licence to enter upon the said land and there remain continuously during the period of the said race meeting for the purpose of viewing the said horse races and until the conclusion of the said race meeting and for the consideration aforesaid the defendant also promised the plaintiff that it would not during the period of the said race meeting and before the conclusion thereof revoke the said licence; and the plaintiff duly paid to the defendant the said sum of four shillings and entered upon the said land pursuant to the terms of the agreement between the plaintiff and the defendant hereinbefore alleged and the said leave and licence and not otherwise and for the purposes hereinbefore mentioned and all conditions were fulfilled and all things happened and all times elapsed necessary to entitle the plaintiff pursuant to and under the terms of the agreement and the said leave and licence to remain upon the said land for the purposes aforesaid and to entitle the plaintiff to a performance by the defendant of its said promises; and the plaintiff having entered upon the said land continuously remained thereon until the revocations hereinafter alleged pursuant to and under the terms of the said agreement and the said leave and licence and not otherwise and for the purposes thereof and not otherwise; yet the defendant during the period of the said race meeting and before the conclusion thereof in breach of its said promise revoked the said licence and the plaintiff remained upon the said land after such revocation but whilst the said race meeting was in progress and before the conclusion thereof which is the trespass by the plaintiff alleged in the defendant's said plea whereupon the defendant by its servants and agents committed the trespass alleged in the declaration for the purpose of ejecting and removing the plaintiff from the said land."
To this replication the defendant demurred, and the Supreme Court of New South Wales entered judgment for the defendant in demurrer for the reasons given by it in support of its decision in Naylor v. Canterbury Park Racecourse Co. Ltd. [F36] An appeal from that judgment is now brought to this court. The decision of the Supreme Court is founded upon the well-known case of Wood v. Leadbitter, [F37] and the court distinguishes Hurst v. Picture Theatres Ltd., [F38] on the ground that it was based upon the provisions of the Judicature Acts, which were not in force in New South Wales-though the court shared the difficulty of Phillimore L.J. in Hurst's Case [F39] in understanding the relevance of the Judicature Acts to the matter under consideration.
The critical question on the present appeal is whether Hurst's Case was rightly decided. It was a decision of a majority in the Court of Appeal consisting of Buckley and Kennedy LL.J. (Phillimore L.J. dissenting), and it has been accepted as law in England by Lush and McCardie JJ. in British Actors Film Co. Ltd. v. Glover [F40] and Said v. Butt [F41] respectively, and in Ireland in David Allen & Sons Billposting Ltd. v. King. [F42] But it has not escaped the criticism of many learned lawyers (Cf. Holdsworth's History of English Law, vol. vii., pp. 327, 328; Ashburner's Principles of Equity, 2nd ed. (1933), by Denis Browne, p. 19; Cheshire's Modern Law of Real Property, 2nd ed. (1927), pp. 253, 254, 292, 293; Hanbury's Modern Equity (1935), pp. 117, 118; Gale on Easements, 9th ed. (1916), p. 63). The decision in Hurst's Case [F43] does not bind this court, but uniformity of decision is desirable. And the decisions of the Court of Appeal may well, I think, be taken as accurately stating the law of England unless some manifest error is apparent in them, or other special circumstances exist. Here we have, at variance with the decision of the Court of Appeal, the dissenting opinion of Phillimore L.J., [F44] much professional criticism, and the judgment of the Supreme Court of New South Wales in Naylor's Case, [F45] followed in the case now under appeal. In these circumstances, I think this court should enter upon a consideration of the decision in Hurst's Case and the reasons given for it. The reasons were two:-
- (a)
- The plaintiff had a licence coupled with a grant or interest.
- At law, a licence to use land, whether given by deed, writing, or parol, coupled with a grant or interest, was irrevocable, provided only, in the case of a licence by parol, that the grant was of a nature capable of being made by parol (Wood v. Leadbitter). [F46] But "what is the sort of interest that must be conferred to make a licence irrevocable"? (Taplin v. Florence). [F47] It must be an interest in the thing to which the licence extends. [F48] Or, as Parker J. said in James Jones & Sons Ltd. v. Tankerville (Earl), [F49] "a licence to enter a man's property is prima facie revocable, but is irrevocable even at law if coupled with or granted in aid of a legal interest conferred on the purchaser, and the interest so conferred may be a purely chattel interest or an interest in realty." Grants of easements, or of profits a prendre or the right of taking natural produce or profits from the lands of others, are well-known instances of licences coupled with grants or interests in realty, and are irrevocable. At law, such interests could only be created by deed (Wood v. Leadbitter; [F50] Bird v. Higginson; [F51] Frogley v. Earl of Lovelace; [F52] James Jones & Sons Ltd. v. Tankerville (Earl); [F53] and see Webber v. Lee). [F54] And a licence to enter and take goods upon the lands of the seller is a licence coupled with an interest in personalty, and also is irrevocable (Wood v. Manley; [F55] and cf. Taplin v. Florence; [F56] Williams v. Morris; [F57] Cornish v. Stubbs; [F58] James Jones & Sons Ltd. v. Tankerville (Earl)). [F59] On the other hand, it was held that a ticket of admission to a theatre or a racecourse operated as a mere licence justifying the act licenced, but conferring no other interest and therefore was revocable (Wood v. Leadbitter; [F60] and cf. Hill v. Tupper). [F61]
- The reason for the distinction is indicated by Parker J. in James Jones & Sons Ltd. v. Tankerville (Earl): [F62] the mere licence is not coupled with any chattel interest or any interest in realty. Or, to use the language of Sir William Holdsworth (Holdsworth's History of English Law, vol. vii., p. 328), "it is obvious, firstly, that when the court" in Wood v. Leadbitter "talked of a grant, they meant the grant of some ascertainable property which is capable of being granted, and, secondly, the court itself decided in that case that such a grant must have been validly made, so that if (as in that case) the grant was of an incorporeal right over land which could not be granted without a deed, and no deed was executed, the licence was revocable." The majority of the learned judges in Hurst's Case treated a "right to ... hear ... or see" on the same footing as a grant of some ascertainable property. But there, I think, lies the fallacy: the licence was not coupled with a grant or interest in any ascertainable property, it was simply a right, subsisting in contract, to see a performance. It was therefore, according to the doctrine of the common law, revocable, though no doubt a breach of the contract would sound in damages (Kerrison v. Smith; [F63] Butler v. Manchester, Sheffield and Lincolnshire Railway Co.). [F64] The majority of the learned judges in Hurst's Case sought, however, to buttress their decision by reference to the doctrines of equity. Assuming, they suggested, that the plaintiff's interest was incapable of being supported at law upon the footing of Wood v. Leadbitter, [F65] still, the ticket issued to the plaintiff conferred on him a good interest in equity, which, but for the absence of a seal, would have been enforceable at law, and since the Judicature Acts could it not be said "as against the plaintiff that he is a licensee with no grant merely because there is not an instrument under seal which gives him a right in law" (Hurst's Case; [F66] Walsh v. Lonsdale). [F67] Again the fallacy is, I think, in the assumption that the ticket issued to the plaintiff conferred on him a right to some ascertainable property in equity: it did not do so in equity any more than at law.
- The relationship created by the issue of the ticket was merely contractual. It was immaterial whether the ticket was under seal or not, for the licence to hear and see the performance was not coupled with any grant or interest in any ascertainable property, either in equity or at law. Consequently, it should follow that the licence to hear and see the performance was revocable.
- (b)
- The plaintiff had a licence given for value, coupled with an agreement not to revoke it. That was an enforceable right, and it was a breach of contract to revoke the licence. The replication in the present case expressly alleges that for a certain consideration the defendant "promised the plaintiff that it would not during the period of the race meeting and before the conclusion thereof revoke the said licence." On demurrer, that allegation must be accepted as a fact, however improbable it may be as a matter of proof. It is, of course, true that a court of equity had jurisdiction to restrain the violation of stipulations in contracts. Normally, it so restrained the breach of purely negative stipulations, but exercised a wide discretion in the case of affirmative stipulations (Doherty v. Allman). [F68] But rights in property and contractual stipulations must not be confused. In Hurst's Case the plaintiff did not establish any right at law or in equity in any ascertainable property, but at best the breach of a contractual obligation. Assuming that a court of equity had jurisdiction to restrain and would by injunction have restrained such a breach-and cases may be put even of rights "to hear and see performances," for instance, a contract for a box or a seat during a season of opera, in which equity might so act-still, the contract would not create a licence coupled with a grant or interest in any ascertainable property, which is the relevant consideration. The question is not whether a court of equity would grant an injunction for a breach of the contract, but whether an action of trespass is maintainable. Further, as Ashburner (Principles of Equity, 2nd ed. (1933), p. 19) observes, citing Cooper v. Chitty, [F69]
- "there is no case in the books in which a court of common law held that an action could be maintained for trespass on account of some act of the defendant which was not a trespass at law at the time when it was committed and only became so ex post facto if the effect of a decree of specific performance were related back."
Consequently, in my judgment, the decision in Hurst v. Picture Theatres Ltd. [F70] ought not to be accepted in this court as an accurate statement of the law. The judgment of the Supreme Court of New South Wales should, therefore, be affirmed and this appeal dismissed.