Turner v. York Motors Pty Ltd
(1951) 85 CLR 58(Decision by: Dixon J)
Turner v
York Motors Pty Ltd
Judges:
Dixon JWilliams J
Webb J
Kitto J
Judgment date: 3 October 1951
Melbourne
Decision by:
Dixon J
This is an appeal from an order of the Supreme Court of New South Wales dismissing with costs an application by way of appeal made by the defendants in an action of ejectment to set aside a judgment entered for the claimant and to enter a judgment for the defendants or alternatively for a new trial or for such further and other relief as to the court might seem meet. No general verdict was taken at the trial, but certain questions were put to the jury, and upon the answers given by the jury, answers which in some cases were directed, judgment was entered for the claimant for the recovery of the land. The land consisted of five and a quarter acres at the intersection of Bourke Street and Botany Road, Waterloo, occupied by the defendants as a site for the storing or parking of motor bodies, motor vehicles, caravans, machinery, goods to be carried or transhipped, and junk generally. The defendants were let into possession of the land by the predecessor in title of the claimant as lessees or intending lessees. On 23rd March 1949 the claimant gave the defendants a notice in writing dated 21st March 1949 requiring the defendants on 25th April 1949 to quit the land and deliver up possession thereof to the claimant and stating that the claimant was owner and that the defendants held the land from the claimant as tenants at will. The defendants did not comply with the notice to quit and the claimant issued a writ in ejectment on 2nd May 1949. The defendants claimed to have become lessees of the land and denied that the notice to quit sufficed to determine the tenancy. They further claimed that the land was "prescribed premises" within the meaning of s. 8 of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.). They said also that two of the defendants were "protected persons" as defined in regs. 28A and 30 of the National Security (War Service Moratorium) Regulations and they relied upon those regulations.
The evidence upon none of the issues raised by these defences or answers to the writ in ejectment was left in a satisfactory condition.
It appeared that the defendants formed a firm of seven members carrying on a business described in the registration of the firm as that of motor car and truck selling. On 16th April 1946 one George Harold Sears became registered proprietor of the land by transfer. The land had been occupied by the Commonwealth for some purpose arising out of the war and upon it there had been erected a number of temporary buildings but these were to be removed or were in course of removal.
At a time fixed as about 9th October 1946 the defendant E. H. S. Turner communicated with Sears and sought a lease of the land for the defendants' business. The upshot of the conversation, according to Sears' version, was that he was agreeable to lease a portion of the land to the defendants at a rent of PD6 a week for two years with immediate possession but that a lease must be drawn up by Sears' solicitor. According to Sears he said to Turner "You can sign the lease and you can take possession". On Turner saying that it would take him three or four days to move Sears added "You can take possession straight away".
An undated letter from Turner to Sears, said to have been written on 10th October 1946, was put in evidence. The letter began "Enclosed cheque for PD24 being rent for 4 weeks for block of land fenced", describing it. The letter stated that the land would be used for a junk yard for storing repossessed vehicles that would cost more to do up than they were worth and for storing caravans and trailers and garaging and servicing them. Turner's letter proceeded to say that he understood from Sears that the lease of the land would be subject to six months' notice if certain other premises of Sears should be resumed and subject to three months' notice if Sears should require the use of the land the subject of the lease. In cross-examination Sears in effect agreed that something to this effect was said, though he was indefinite about the periods of notice. Turner gave an account which differed in two respects from Sears' version. In the first place, according to Turner no mention of a formal lease was made. In the second place, in one part of his evidence Turner made the provision as to six months' or three months' notice operative not during, but after the expiry of, the term of two years. His evidence was that Sears said:
"`The place is going to be resumed', or `likely to be resumed at any time', as he had received notice from the hospitals or something to do with the hospital at Camperdown, and they may resume it at any time, but he would get two years' notice from the authorities, and he could give me two years. But after that it would be subject to six months' notice, if he received notice from the hospitals or whoever was buying for the hospitals."
A little later he deposed that Sears said that he would get six months' notice if the council resumed and he would get three months' notice if Sears wanted to build on the land: that was after the first two years. But in his cross-examination Turner said
"He gave me a two years' lease, a two years' lease subject to six months' notice if the hospitals wanted to build on his land where the factory is or three months' if he wanted to use the land himself".
That Sears intended to reserve a power by notice to abridge the fixed term, not to provide for a notice terminating a tenancy after the fixed term, is shown by a draft lease which Sears' solicitors prepared and forwarded to Turner on 24th October 1946. The draft lease was expressed to grant a term of two years and it contained a provision enabling the lessor to terminate the lease by three months' notice in writing if the lessor required to use the land for his own purposes.
The area of the portion of the land of which the defendants were to become tenants was about one and a quarter acres. They went into possession at once, according to Sears, without his consent, that is, I understand it, on 10th October 1946. For some time they carried on their business on the land. They brought two caravans upon the land and connected them by a platform and a covering roof. Turner used the connected caravans as an office and a habitation. Indeed he was prosecuted and convicted for erecting a building without the approval of the municipal council. Though in answer to the defendants' letter attributed to the date 10th October 1946 enclosing a cheque for PD24 Sears' solicitors said they would hold the cheque until some appropriate agreement was prepared embodying the conditions of tenancy, the defendants regularly paid rent to Sears at the rate of PD26 a calendar month and Sears accepted it. As time went on the defendants began to extend the area they used beyond the one and a quarter acres which they were to occupy. In the meantime, although Turner had received a draft lease neither he nor his partners had executed a lease nor had they agreed upon the terms of such a document.
Sears put forward various proposals or requests as to the precise portion of the block which the defendants should occupy. The defendants actually used a greater area than that for which they had originally arranged but eventually Sears and Turner appear to have agreed that the defendants should occupy the whole area at a rent of PD52 a month. There is some doubt when this took place. Turner said it was in October or November 1947. At the trial a letter was referred to dated 15th March 1948 from Sears' solicitors to the defendants suggesting that the lease of the whole area should commence on 1st April 1948, mentioning the rent of PD52 a month and the necessity of a lease being drawn up which should contain proper conditions. When the defendants' holding of the entire area began is not important. What is important is that the defendants entered into occupation of the whole area and paid a periodical rent for it of PD52 a month in advance which was accepted by Sears.
In or about September 1948 some discussions appear to have taken place concerning the possibility of the defendants purchasing the land or some of it. The land was however sold by Sears to York Motors Pty Ltd , which is the claimant company. A transfer to the claimant company dated 14th October 1948 was executed and it became the registered proprietor of the land. The company accepted payments of rent from the defendants, for three months, up to 14th January 1949 it was said, but after that the tenders of rent by the defendants were refused.
Whatever may be the proper conclusion as to the duration of the tenancy upon which the defendants held the land, it is clear enough that a tenancy subsisted between Sears and the defendants, even if it amounted to a tenancy at will only. It was of course a tenancy for less than three years and at the time of the transfer of land by Sears to the claimant company the defendants were in possession. The land was under the Real Property Act 1900-1940 (N.S.W.) and it follows that under s. 42 (d) of that Act the claimant company's title was subject to the defendants' tenancy, whatever its character should be held to be. The question whether the notice to quit sufficed to determine the tenancy depends upon the character of the tenancy upon which the defendants held at the time the notice to quit was given. No less than five possible conclusions as to the duration or character of the tenancy at that time may be said to be open upon the circumstances which I have described. It is important to keep steadily in view the fact that what matters is the nature of the tenancy at the time when the notice to quit was given and not at the time when the defendants first entered upon the land. And that is so for two reasons. The first is that the two years' term that was contemplated in the first instance, if calculated from 10th October 1946, expired on 9th or 10th October 1948 and at best the defendants must have been holding under some periodical tenancy on 23rd March 1949 the date of the notice to quit. The second is that when the defendants became tenants of the entire area of five or five and a quarter acres that necessarily involved or implied a surrender of their tenancy of the smaller area contained within the larger.
The five possible views which, as it is or may be suggested, it is open to take of the character of the tenancy then subsisting are these. First, the defendants may have been tenants at will only. Secondly, they may have been governed by s. 127 (1) of the Conveyancing Act 1919-1943 (N.S.W.) so that the tenancy is to be deemed to be a tenancy determinable at the will of either of the parties by one month's notice in writing expiring at any time. Upon either of these two views the notice to quit would suffice. Thirdly, the tenancy may have been terminable by three months' notice only. Fourthly, the defendants may have been tenants from month to month. Fifthly, they may have held on a tenancy from year to year falling outside s. 127 (1) of the Conveyancing Act 1919 1943. Upon either the third, the fourth or the fifth view the notice to quit would not suffice, in the fourth case because, although the currency of the notice is a month, it does not expire at the end of a periodical month from the commencement of the tenancy and in the third and fifth cases because three or six months' notice would be required.
The first of these five views is based upon the notion that the defendants went into possession of the premises provisionally pending agreement upon and the execution of a lease and that from beginning to end the defendants' possession remained of this character so that no fixed or periodical term arose and the defendants held as tenants at will only. If an intending lessor lets the intending lessee into occupation of the premises in anticipation of an agreement for a lease or of a lease, simply so that he may temporarily occupy while they proceed to negotiate concerning the conditions upon which the intending tenant shall hold, it is of course true that in the meantime the intending lessee holds as a tenant at will only. It is not inconsistent with the intending lessee's continuing so to hold that he pays the landowner some compensation for the use of the land and indeed if it is not intended that his occupation of the land shall be gratuitous the owner may recover from him upon a quantum valebat for use and occupation. But the reservation and receipt of a periodical rent as such affords strong evidence of the creation of a periodical term.
"Where parties enter under a mere agreement for a future lease they are tenants at will; and if rent is paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract"
per Littledale J. in Hammerton v Stead [1] , at p. 813]. The case where the parties have not actually reached an agreement for a future lease depends upon the same principle, that is upon the implication from the receipt of a compensation for the use of the land, but the inference to be drawn from the circumstances may be less certain. In Moore v Dimond [2] , some observations were made concerning the manner in which the principles applied whenever the tenant held under an agreement for a lease, whether the agreement was expressed as an executory contract or consisted of an intended demise for more than three years void because not under seal:
"In such cases the contractual intention of the parties is completely expressed in a binding manner, but is formally inefficacious to create a legal interest of the intended duration. There is little resemblance between such a case and the very many instances in which a person has been let into, or has retained, possession of land without any express contract, and the question is whether he is a tenant, and if so, for a term of what duration. Such cases occur when a tenant overholds; when a tenant for life has granted a lease in excess of his power and dies before its determination, and the remainderman allows the lessee to retain possession; when a mortgagor has granted a lease without statutory or other power; and when the terms of entry are too vague or uncertain to be ascertainable. In such cases payment or acknowledgment of rent constitutes evidence of the establishment of a tenancy, and the fact that the rent is paid by reference to a year, or aliquot part of a year, affords evidence of a tenancy from year to year. The existence and duration of the tenancy in such a case were, however, questions of fact. On the other hand, in Doe d. Thomson v Amey [3] , in deciding that a proviso for re-entry formed a condition of a tenancy from year to year, implied from entry and payment of rent pursuant to an agreement for a lease containing such a condition, Patteson J. said [4] : `The terms upon which the tenant holds are in truth a conclusion of law from the facts of the case, and the terms of the articles of agreement' ".
See also Finlay v Bristol and Exeter Railway Co [5] , at pp. 1010, 1011, 1012]; Jones v Shears [6] at p. 999]; Neall v Beadle [7] . Although entry into possession and payment of rent calculated by reference to a year, a month or a week are not legally conclusive of a yearly, monthly or weekly tenancy and amount only to evidence of such a tenancy they are facts which according to circumstances may afford such evidence that any other conclusion would be unreasonable.
In the present case the possession and the regular payment of rent went on for a long time; what is of great importance, the rent was paid in advance and further payment of rent had been going on for a considerable time when the occupation was extended to the entire premises and then a rent was fixed for what amounted to a new occupation and was paid in advance in respect of each succeeding month. Rent in advance is compensation for the land in respect of an ensuing period and necessarily implies a title to occupy throughout the period for which it is paid in advance. Nothing but an express reservation of the right nevertheless to terminate the tenancy at volition during the currency of a period for which rent in advance has been paid would seem enough to justify an inference that a common intention persisted that the tenancy should remain at will only. There is evidence of a desire on the part of Sears' solicitors to preserve him from the inference that a periodical tenancy had been created but their efforts could not but be ineffectual in face of his own acts in letting the defendants into possession of the larger area of land at an increased monthly rent payable in advance and his regular acceptance of the rent.
It seems to me to be impossible to suppose that for two and a half years the parties proceeded on the basis that the defendants were in possession provisionally pending negotiations and liable to be turned out at any moment. The very term contemplated had expired: a new tenancy of a larger area had been created and the rent was fixed and paid as a compensation for successive periods of future enjoyment.
At the trial the question was treated in a very curious way. The jury were asked two questions which related to the initial arrangement between Sears and Turner. The first question was- (1) Was the occupation by the defendants under an oral agreement that a formal lease would be drawn up by the solicitor for Mr. Sears to be signed by him and by the defendants? To this question the jury answered, Yes. The second question was divided into two parts. The earlier part asked, (2) (a) Was the tenancy between Mr. Sears and Mr. Turner for a term of two years only? To this the jury returned an answer, No. The second part asked, (2) (b) Was the agreement for a term of two years and to continue thereafter until terminated on three months' notice? The jury answered, Yes.
Uninstructed I should have thought that these questions and answers meant that a concluded agreement for a lease had been reached between Sears and the defendants under which the defendants occupied and that it was an agreement for a lease for two years certain and thereafter until terminated by three months' notice expiring at any time. Indeed, it is hardly going too far to assert that, in a slightly expanded form, that is what the findings actually say.
The legal consequence of such a finding, coupled with the fact of payment of rent would be that the defendants held upon a tenancy from year to year terminable upon three months' notice expiring at any time: see Moore v Dimond [8] , where the reasons for that result are explained.
But though, as it seems to me, the questions and answers can mean nothing else than that there was an agreement for a lease of the term stated and that the defendants held under such agreement it is said that the questions and answers must be read in the light of the direction which the jury received and that when so read they have or the first of them has the very opposite meaning. I shall not set out the passages from the summing up which are said to require such an interpretation of the jury's findings. I have studied the direction closely; but for the purpose of my decision it is not necessary to discuss it at length. It is I think plain that it was intended to submit to the jury the question whether the defendants went into possession subject to the drawing up and execution of a formal lease. I advisedly state what was intended in this form. But I think that it is equally clear that the distinction was never explained to the jury between the two very different positions that may be covered by the brief and deceptively simple statement I have employed. The one position is an entry provisionally and without any agreement but pending negotiations for an agreement or a lease with a common intention that notwithstanding payment of compensation for the use of the land described as rent the occupier shall remain nothing but a tenant at will until a formal lease is executed or an agreement reached. The other position is that the parties agree on the main terms of a tenancy including rent and agree also that the transaction shall be carried out by a proper conveyancing document and that in the meantime the tenant shall hold in pursuance of the agreement. In the latter case at common law payment of rent established a tenancy of a periodical character (usually from year to year) coming to an end automatically with the effluxion of the agreed term: see Moore v Dimond [9] .
The consequences in equity of holding under an agreement for a lease are of course well known but in this case the equity jurisdiction of the court was not invoked and we are not concerned with the position in equity.
The form in which the first question was framed was probably the result of a failure to make the necessary distinction. The second question appears to me to show that an actual agreement between Sears and the defendants was assumed. Doubtless it was supposed that if one of the conditions of the agreement was that a lease should be prepared and executed that would make the agreement ineffective and leave the defendants tenants at will. But that of course would be an error.
In order to give to the first question and answer a meaning which would deny the existence of any agreement between Sears and the defendants, it is suggested that the second question and answer must be rejected. Apparently the second question was submitted at the request of counsel for the claimant company, the respondents, because so it is suggested he feared a negative answer to the first question. On this view the jury ought not to have answered the question having said yes to the first question. But a jury's findings cannot be treated in this fashion.
The findings as expressed are clear and consistent and carry a very sensible meaning. To give one question a secondary meaning obtained from the oral direction of the presiding judge (and at that a secondary meaning its language will not bear) and then reject the second altogether as incompatible with that meaning is I venture to think contrary to the principles upon which a jury's findings are dealt with. If the proper conclusion from the summing up is that the jury have misunderstood what was intended, then their findings must both be set aside.
For myself, however, I would assume that the jury had read the written questions sent in to them and had answered them according to their natural meaning and consequently with complete consistency. In any case the direction given to the jury does not make clear the essential point, namely that there should be a common intention that the occupation of the land should be provisional pending the agreement of terms and notwithstanding payment of rent an occupation at will only.
The answer to the second question, however, appears to me to be possibly open to the serious criticism that it is contrary to the weight of the evidence. For the weight of the evidence may well be regarded as being that the three months' notice was intended to apply during and not after the two years. But the true effect of that evidence does not seem to have been brought home to the jury. The Full Court no doubt had jurisdiction to set aside any of the findings of the jury, but at the trial the learned judge's power under the implied reservation of authority to enter a verdict was to enter such verdict as upon the undisputed facts the jury's specific findings warranted in law, not to go behind the jury's findings. It is however not really of great importance to consider these findings because they relate to a date when the more material events affecting the rights of the parties had not occurred-and are concerned only with what may be called preliminary evidentiary facts. As I have said the long continued occupation, the agreement that the defendants should take definite possession of the entire area, the expiry of the term of two years, the fixing of a new monthly rent payable in advance, its repeated payment in advance and the receipt thereof by Sears, are facts of very great importance. There is no sufficient evidence of a continuing common intention that notwithstanding these facts the occupation of the land should be provisional and the tenancy be a tenancy at will only.
I think that the claimant company fails in its contention that the defendants held as tenants at will only so that at the end of the period fixed by the notice to quit the tenancy ended.
It is therefore necessary to consider the second of the suggested possible views of the character of the defendants' tenancy, namely that it was governed by s. 127 (1) of the Conveyancing Act 1919-1943 (N.S.W.). This sub-section provides that no tenancy from year of year shall be implied by payment of rent; if there is a tenancy and no agreement as to its duration, then such tenancy shall be deemed to be a tenancy determinable at the will of either of the parties by one month's notice in writing expiring at any time. The second part of this provision, if detached from the first, would govern every case where the character of the tenancy was implied from the payment of rent and where there was no agreement as to its duration. Thus, on that hypothesis, payment of rent by the week, the month, the quarter or the year assuming no agreement as to duration would all alike result in a tenancy at will terminable by a month's notice expiring at any time. It might govern the present case if the second part were thus read, independently of the first part. For if the jury's finding that the agreement was for a tenancy for two years and thereafter until terminated on three months' notice were set aside or disregarded there would be a tenancy and no agreement as to its duration. The two years were ended. Disregarding that finding the defendants held the land without any further agreement as to duration than would be implied from the payment of a monthly rent.
Doubtless on a literal reading of s. 127 (1) there is much to be said for treating the second part as laying down a general rule to be applied universally wherever there is a tenancy and no agreement as to duration. But unfortunately for the claimant that is not the way the provision has been read. The whole sub-section has been interpreted as applying only to cases where at common law a tenancy from year to year would be implied from the payment of rent. In Burnham v Carroll Musgrove Theatres Ltd [10] , in a judgment in which Harvey C.J. in Eq. and Campbell J. concurred, Ferguson J. dealt with the case of the continuance of a tenant in possession after a weekly tenancy had expired and the acceptance of a weekly rent from the tenant so continuing in possession. Ferguson J. said:
"Sect. 127 of the Conveyancing Act, in my opinion, has no application to the case. That section was intended to prevent the implication of a tenancy from year to year from the payment of rent, and to substitute for such implied tenancy a tenancy determinable by a month's notice. It was never intended to apply to cases where before the Act no implication of a tenancy from year to year would have arisen" [11] .
In this Court the reasons of Ferguson J. were "substantially adopted" by Knox C.J., Gavan Duffy J. and Powers J. [12] and the view of s. 127 (1) expressed by Ferguson J. obtained the express approval of Higgins J. [13] . Isaacs J. however appears to have thought that the provision should be literally construed [14] . I think we must treat Burnham's Case [15] as having placed upon s. 127 (1) a construction which limits its application to states of facts in which a tenancy from year to year would at common law be implied from the payment of rent.
The payment of rent in the present case was not referable in any way to a year. The rent was fixed at a monthly rate as compensation for monthly periods. Accordingly a yearly tenancy would not have been implied at common law from the payment of rent.
The third possible view of the character of the tenancy is that, whether from year to year or month to month or at will, it is by express agreement liable to determination only by three months' notice in writing expiring at any time. This view depends entirely on the finding of the jury. It seems to have been assumed at the trial that if such an agreement were made as to the original occupation of the one and a quarter acres it was necessarily carried over to the occupation of the five acres. But that inference of fact is not self-evident.
Yet there stands a finding of the jury which, if it is not set aside and if the assumption made at the trial is adhered to, appears certainly to entitle the defendants to succeed. On the evidence I should think that the finding embodied an erroneous conclusion of fact and one upon which the jury had been insufficiently directed with regard to the material considerations affecting the issue. But it is not easy to say that there is no evidence to submit to a jury upon the question.
This finding might perhaps be set aside as against evidence or, departing from what I understand to be the assumption at the trial, it might be treated as insufficient because it does not relate to the material tenancy or to the material time, that of the entire parcel as at the time of the notice to quit. To set it aside as against evidence does not necessarily mean that the Court can ignore the issue or refuse to submit it to another jury. For myself I cannot avoid the feeling that the jury intended their findings upon the first and second questions to be findings in favour of the defendants; and that in truth is their legal tendency so far as they go.
It seems to me to be strange that notwithstanding these findings a verdict should have been entered for the claimant. However it is not a matter that it is necessary to pursue: for, as I think, upon the real facts a tenancy from month to month arose and for that reason the notice to quit is insufficient. This means that independently of the foregoing findings of the jury I adopt the view that the fourth suggested possible view of the tenancy is well-founded.
This view is based on very simple facts, namely that the defendants were in occupation of the whole land at a monthly rent payable in advance and that the rent was paid by the defendants and received by Sears and afterwards by the claimant as and for rent. These facts raise a strong prima facie case in favour of a monthly tenure. There is no sufficient evidence of an agreement between Sears and the defendants that they were to be considered throughout the whole period tenants at will only and such a position would be incongruous with the repeated receipt of rent in advance for successive future monthly periods of tenancy. I assume of course for this purpose that there was no express agreement for three months' notice. No case can be found in which a party let into possession pending the agreeing of the terms of tenancy has paid periodical rent, still less rent in advance, and has yet been considered a tenant at will only. It appears to me to be unreasonable to suppose that for two and a half years the parties proceeded on a provisional basis intending that there should be no tenancy except at will notwithstanding the payment of rent, rent moreover for future monthly periods and not merely for past enjoyment and notwithstanding that the defendants, by a new transaction, were placed in occupation of the whole premises as tenants.
As I see the matter the strong presumptive conclusion from the facts is that the defendants held as tenants from month to month and upon the whole evidence any contrary conclusion would be unreasonable. A tenancy from month to month means that the notice to quit should expire on the day before, or perhaps on (see Quartermaine v McCleery [16] , and cases there cited) a periodical monthly date corresponding with that as upon which the tenancy from month to month commenced. As the evidence stands there is some difficulty in fixing the date of the commencement of the monthly tenancy of the five acres. Originally the defendants seem to have entered into possession of the one and a quarter acres on 10th October 1946 in pursuance of the conversation of the previous day. I do not think that that conversation should be taken to include an oral demise and possibly 10th October 1946 was the commencing day of the original tenancy. But it does not follow that a corresponding monthly date afforded the commencing day of the tenancy of the whole area. For what exact monthly period rent was paid in advance does not appear. But, if the claimants experienced a real difficulty in ascertaining the correct date, it was open to them to adopt the course of specifying the date in the notice to quit as best they could and then giving as an alternative the expiration of the month of the tenancy which should expire next after one month from the service of the notice (Doe d. Campbell v Scott [17] ; Hirst v Horn [18] ; Sidebotham v Holland [19] , at p. 389).
The possible view of the nature of the tenancy fifthly suggested would of course also make the notice to quit insufficient, that is to say the view that it was a tenancy from year to year outside s. 127 (1) of the Conveyancing Act. But that view appears to me to be ill-founded. It is based upon the idea that an agreement for two years having been made originally and the monthly rent having been fixed as periodical part payment of compensation for the entire period, the correct conclusion is that a tenancy from year to year was established and went on. This reasoning treats s. 127 (1) as excluded because the tenancy from year to year is the result of more than the payment of rent.
I think that the view is ill-founded because it leaves out of account some most important factors. In the first place, assuming such a tenancy from year to year had arisen in this manner, it would end with the expiration of the two years (Moore v Dimond [20] ; Dockrill v Cavanagh [21] ). In the second place the question relates to the tenancy of the whole land and not that of the original one and a quarter acres. In the third place the question is of the inference to be drawn or the implication to be made from the fact of a tenant holding after the expiration of the two years and paying a monthly rent in advance without reference to a year.
It follows however from the conclusion that the tenancy was from month to month that the notice to quit was bad and ineffectual to bring the tenancy to an end.
In the Full Court the view was taken that the defendants could not rely upon the tenancy being one from month to month terminable only by a notice expiring with a monthly period because the point had not been made at the trial. There appears to have been a great deal of confusion at the trial. But the particulars of defence said the tenancy had never been determined and the defendants' counsel submitted that there was no case to go to the jury because among other reasons the notice to quit was insufficient. Further, after the summing up, he said that he suggested that it was a monthly tenancy terminable on three months' notice.
As I see the position the claimant obtained no finding at all upon which the notice to quit could be supported and the defendants obtained in the answer to question 2 (b) a finding which so far as it went tended to support the defendants' contention that three months' notice was necessary. The claimant was left in the position, after the jury's findings, of having to establish that consistently with the findings the judge should hold as a matter of law that they were entitled to judgment because the notice to quit had operated to end the tenancy. That in my opinion the claimant could not do nor could the claimant establish a right to judgment even if the jury's findings were disregarded. Nothing the defendants' counsel said or failed to say could have put a different complexion on the claimant's position. What he did say, namely that three months' notice was requisite, was borne out by the jury's answer to question 2 (b) and if he is deprived of the benefit of that answer I cannot see why no attention should be paid to the residue of the submission he made, namely that it was a monthly tenancy. However I think that the claimant made no case on the whole evidence and that its failure to do so was in no way due to anything the defendants' counsel did or omitted to do. This conclusion strictly speaking makes it unnecessary for me to deal with the two other grounds upon which the defendants-appellants relied. But it is better that I should state shortly my opinion concerning them.
The first of these grounds is that the recovery of possession of the land occupied by the defendants is governed by Part III of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) and that under s. 69, a provision of that Part, the Supreme Court is not a competent court in which proceedings for the recovery of possession may be brought. The question depends entirely upon the application to the land of the definition of "prescribed premises" in s. 8 and in the end that comes down to the meaning of the word "premises". The language comes from reg. 8 of the National Security (Landlord and Tenant) Regulations. In three jurisdictions the word "premises" as there used was interpreted as not including "vacant land without more" but as requiring something in the nature of buildings before land could be considered "premises" (Simms v Lee [22] ; McNamara v Quinn [23] ; Re Mayne [24] ). It was after these decisions that the provision was adopted by the legislature of New South Wales in common with other States.
According to Lord Chelmsford, speaking for the Privy Council, the word "premises" in popular language is applied to buildings, although in legal language it means the subject or thing previously expressed (Beacon Life and Fire Assurance Co v Gibb [25] , at p. 639]). This statement is confirmed by the Oxford New English Dictionary which, s.v "premise" pl. 5, gives the meaning of the plural "premises" as "a house or building with its grounds or other appurtenances".
The word "premises" is no doubt a vague one but in legislation of this sort there are great advantages in a test of its application which is objective and consists in a readily ascertainable physical fact. Having regard to the history of the provision and the dictionary meaning of the word "premises", I think that we should adhere to the rule laid down that bare land without buildings, if let for the purpose of occupation as bare land, does not constitute premises. If land is let upon terms that the tenant shall or may erect buildings which are not removable by him but will pass with the freehold, then I should say that the land and building when erected would form premises. Here I think that the land was let to be occupied as bare land and that what the defendants did concerning the caravans is irrelevant. The structures remaining on the one and a quarter acres at the time of the defendants' entry upon the one and a quarter acres were to be removed and were not comprised in their tenancy. Further the structures were removed before the defendants became tenants of the whole area, and that was a new tenancy.
I am therefore of opinion that the recovery of possession of the land in question is not a matter governed by Part III of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.).
The remaining ground upon which the defendants relied is that two of their number were protected persons within regs. 28A and 30 of the National Security (War Service Moratorium) Regulations. The writ in the action was issued on 2nd May 1949. Regulation 30 which is relied upon is that substituted by Statutory Rules 1948 No. 109 for the previous reg. 30, a substitution made because of the discontinuance of the National Security (Landlord and Tenant) Regulations. Regulation 30 appears to depend for its force upon s. 6 (2) of the Defence (Transitional Provisions) Act 1946-1950. Regulation 28A is concerned only with definitions.
In Queensland Newspapers Pty Ltd v McTavish [26] the Court decided that it was beyond the power of the Commonwealth, by the Defence (Transitional Provisions) Act 1946-1949, to continue these regulations in force for the year ended 31st December 1950. The reasons given by the Court apply with equal force to the continuance of the regulations during the preceding year, that ended 31st December 1949, by the Defence (Transitional Provisions) Act 1946-1948. As the regulations are held void, I do not propose to express any opinion upon the questions which were raised under them as a result of the defendants' reliance upon them.
The place of the National Security (War Service Moratorium) Regulations has been taken in New South Wales by the Landlord and Tenant (War Service) Amendment Act 1949. But that Act came into force on 6th June 1949 after the issue of the writ. Section 2 (1) brings under the operation of the Act any application or other proceeding under the corresponding Commonwealth Regulations which was pending immediately before the commencement of the Act. But this action was not an application or proceeding under the regulations. It is a common law action of ejectment and the regulations have no connection with it except that the defendants vainly attempted to invoke them by way of defence.
This ground taken by the defendants was therefore not sustainable.
However in my opinion the defendants were entitled to judgment because the tenancy under which they held the land was not brought to an end before the issue of the writ.
The ground upon which the defendants have succeeded appears to me to be covered by the objections made for the defendants at the trial. Their counsel in supporting his contention that the notice to quit was ineffectual may have put his argument too high by claiming a right to three months' notice but the claimant was never able to make a case sufficient to meet the objection that the notice to quit was ineffectual and it was incumbent upon the claimant to show that the tenancy had been terminated.
I do not think that there is any sufficient reason for depriving the defendants-appellants of any part of the costs which would in ordinary circumstances be awarded.
I think that this appeal should be allowed with costs and the order of the Full Court of the Supreme Court discharged. In lieu of the order of the Full Court of the Supreme Court I think that it should be ordered that the appeal to that court be allowed and that a verdict and judgment in the action should be entered for the defendants (appellants) with costs.