Turner v. York Motors Pty Ltd
(1951) 85 CLR 58(Decision by: Webb J)
Turner v
York Motors Pty Ltd
Judges:
Dixon J
Williams J
Webb JKitto J
Judgment date: 3 October 1951
Melbourne
Decision by:
Webb J
I would allow this appeal for the reasons given by Kitto J.
The tenancy which is the subject of the proceedings out of which this appeal arises is that which came into existence when the appellants began to pay PD52 per calendar month for the whole five acres. This tenancy arose simply from the payment and acceptance of that amount: there was no agreement apart from that. Sears, the then owner, agreed to take PD52 per calendar month for the five acres because he could not get the appellant to sign a lease. But it was assumed by both parties at the trial that the conditions of a prior tenancy of part of the five acres, whatever those conditions may have been, were imported into this tenancy. On that assumption the appellants claimed that they were entitled to three months' notice to quit whereas the respondent company on 21st March 1949, had given them a notice to quit expiring on 25th April 1949. This notice was also based on the assumption that the conditions of the prior tenancy of part of the five acres still obtained and made the tenancy of the five acres a tenancy from year to year determinable, under s. 127 (1) of the New South Wales Conveyancing Act 1919, by one month's notice in writing expiring at any time.
However, the tenancy in question is not a tenancy from year to year, and so s. 127 (1) had no application. There was no holding over giving rise to a tenancy at will which had been converted into a tenancy from year to year by the subsequent payment of rent; and no implication of a tenancy from year to year arises otherwise (see Burnham v Carroll Musgrove Theatres Ltd [57] , per Higgins J.). The acceptance of PD52 per calendar month for the five acres, without any further agreement as to terms, affords the presumption of a monthly tenancy, a periodic tenancy, determinable by a notice to quit expiring at the end of the current period, and it was for the respondent company who as plaintiff pleaded that the tenancy had been determined by the notice to quit to prove it was a valid notice, that is that the current period expired on 25th April 1949. See Lemon v Lardeur [58] , at p. 616, per Morton L.J., followed by all the justices of this Court in Amad v Grant [59] , per Latham C.J. [60] , Rich J. [61] , Dixon J. [62] , McTiernan J. [63] and Williams J. [64] . No such evidence was given: the respondent relied, as already stated, on s. 127 (1) of the Conveyancing Act as applicable and as authorizing the notice. The uncontradicted evidence of the appellants was that the rent in respect of both tenancies was paid in advance and that the first tenancy began on 9th October 1946. This is supported by the draft lease and suggests that, as the occupation by the appellants was throughout unbroken, although under successive tenancies, and the rent was paid each calendar month in advance, the current period in respect of each tenancy began on the 9th and not on the 25th of the month.