Lease: did the parties agree on exclusive possession for a term?

In Radaich v Smith (101 CLR 209) S had entered into an agreement that allowed R to occupy a lock-up shop for a five year term to carry on a business. R applied for a fair rent to be determined. R argued that the agreement gave rise to a licence, rather than a lease, so that there was no jurisdiction to determine a fair rent. The High Court of Australia held that whether there was a lease or a licence depended entirely on whether, properly interpreted, the agreement conferred exclusive possession for a term. If it did then a lease had been created. Any label applied by the parties was irrelevant (for example Windeyer J. at 222). The court held that the agreement in this case did give rise to a lease.


One Response to “Lease: did the parties agree on exclusive possession for a term?”

  1. Street v Mountford | Land Law Says:

    […] with nearly all previous authority in England and in other jurisdictions (see, for example, Radaich v Smith (101) CLR […]

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