Amad v Grant
74 CLR 327(Judgment by: Dixon J)
Amad
vGrant
Judges:
Latham CJ
Rich J
Dixon JMctiernan J
Williams J
Case References:
Mellows v Low - (1923) 1 KB 522
Todd v Enticott - (1887) 13 VLR 475
Mornane v All Red Carrying Co Pty Ltd - (1935) VLR 341
Calvert v Turner - (1865) 2 WW
&
a'B (L) 174
R v Sutcliffe; Ex parte Brooks - (1878) 4 VLR (L) 150
Fitzgerald v Button - (1891) 17 VLR 52
Kurrle v Heide - (1898) 4 ALR 294
Carter v Aldous - (1921) VLR 234
Simmons v Crossley - (1922) 2 KB 95
Queen's Club Gardens Estates Ltd v Bignell - (1924) 1 KB 117
Bowen v Anderson - (1894) 1 QB 164
Precious v Reedie - (1924) 2 KB 149
Lemon v Lardeur - (1946) 1 KB 613
Ellis v Rowbotham - (1900) 1 QB 740
Sidebotham v Holland - (1895) 1 QB 378
Soames v Nicholson - (1902) 1 KB 157
Dagger v Shepherd - (1946) 1 KB 215
Dixon v Bradford and District Railway Servants' Coal Supply Society - (1904) 1 KB 444
Lewis v Baker - (1905) 2 KB 576
Wembley Corporation v Sherren - (1938) 4 All ER 256
Doe d Pitcher v Donovan - (1809) 1 Taunt 555; 127 ER 949
Landale v Menzies - (1909) 9 CLR 89
Moore v Dimond - (1929) 43 CLR 105
Westacott v Williams - (1896) 18 ALT 110
Ellis v Dalgleish - (1921) VLR 333
Harrison v Goodland - (1944) 69 CLR 509
R v Morrish - (1863) 32 LJMC 245
Hamlyn
&
Co v Wood
&
Co - (1891) 2 QB 488
Bridges v Potts - (1864) 17 CBNS 314; 144 ER 127
Cannon Brewery v Nash - (1898) 77 LT 648
Mayo v Joyce - (1920) 1 KB 824
Land Settlement Association Ltd v Carr - (1944) 1 KB 657
Kemp v Derrett - (1814) 3 Camp 510; 170 ER 1463
Savory v Bayley - (1922) 38 TLR 619
Judgment date: 8 May 1947
Judgment by:
Dixon J
Amad v Grant
This appeal was argued with that in Grosglik's case and, like that appeal, it comes to us under s 39(2)(b) of the Judiciary Act. For the reasons I have stated in Grosglik's case I think the proceeding before the magistrate was a matter of Federal jurisdiction.
The objection again is to the notice to quit, but in this appeal a lease in writing or an agreement for a lease was put in evidence. The notice to quit, which was dated 24th July 1946, described the tenancy as one from month to month and required that possession should be delivered up on 25th September 1946.
The instrument governing the relations of the parties is dated 17th May 1937. It is described as a memorandum of agreement on the part of the landlord to let to the tenant and on the part of the tenant to take from the landlord the premises in question at the weekly rent of £2 2s 6d, payable in advance, such tenancy to commence on 17th May 1937 and not to cease until one month's notice in writing shall have been given by either party to the other and such tenancy to continue for three years at the least. The document goes on to provide that the rent is to be paid by the tenant monthly in advance, the first of such payments, amounting to £9 4s 2d, to be paid on the signing of the instrument and thereafter such similar amounts on the seventeenth day of each month following. It contained other provisions, but they do not seem material to the question in hand.
Reg 62 of the National Security (Landlord and Tenant) Regulations is relied upon as, in any event, enough to make the notice to quit effectual. But I do not find it necessary to consider how reg 62 operates in a case like this, where the notice to quit is of greater length than the terms of the tenancy require and cannot be otherwise if it is to comply with regs 58 and 59 and yet be given on the date it bears. It is unnecessary for me to consider the question because, in my opinion, under the general law the notice to quit was valid and sufficiently fulfilled the requirements of the tenancy agreement. The objection taken to its validity is that the date upon which it requires delivery of possession falls within one of the periods in respect of which monthly rent is payable under the tenancy agreement and not upon the seventeenth day of a month. In a yearly, half-yearly or quarterly tenancy, when there are no express conditions governing the termination of the tenancy, the notice to quit must expire at the end of a year, half year or quarter. It is now settled in England that the same rule applies to monthly and weekly tenancies (Lemon v Lardeur (1946) 1 KB 613), and, as I have said in Grosglik's case, I think that there is no reason why the rule should not be considered as applicable to Victoria. In the present case, however, there is an express condition governing the termination of the tenancy. The tenancy is to continue until one month's notice in writing shall have been given by either party to the other. Nothing is said about the necessity of such a notice expiring upon a specific day of the month or about its following any recurring period. To invalidate the notice to quit that has been given a restriction upon or condition of the power to terminate the tenancy must be imported which is not expressed. An implication must be made in the tenancy agreement requiring the month's notice to expire with a period corresponding to the monthly rent days. I can see no sufficient support for such an implication. I am prepared to concede that, where in a lease or agreement for a periodical tenancy there is a clause providing for the termination of the tenancy by a notice of the length which the law would otherwise imply or regard as sufficient, it is to be taken, in the absence of anything to the contrary, to be a notice expiring with a period of the tenancy. Thus a provision for a half-year's notice for a yearly, a quarter's notice for a quarterly, a month's notice for a monthly and a week's notice for a weekly tenancy may, prima facie, be interpreted as referring to a notice expiring with a recurrent period of the tenancy. This may also be the prima-facie construction where there is a yearly tenancy and the provision cuts down the length of notice to a quarter and so perhaps similarly with other periodical tenancies. That view, at all events, is suggested by Dixon v Bradford and District Railway Servants' Coal Supply Society (1904) 1 KB 444 and supported by Lewis v Baker (1905) 2 KB 576, affirmed (1906) 2 KB 599. But the foundation of this presumptive construction is a periodical tenancy and also, I think, some apparent or presumed connection between the length of time provided for the notice and the recurring period of the tenancy. I cannot believe, for instance, that a provision for a week's or a month's or six-weeks' notice terminating a tenancy from year to year would be construed as meaning prima facie that the notice must expire with a year. But it is not material how the periodical character of the tenancy appears. It may arise from the reservation of the rent and the fact that it is calculated by the year, the quarter, the month or as the case may be. The tenancy need not be expressly described as yearly, quarterly or monthly. Even where there is a periodical tenancy, it is enough to displace the interpretation requiring the notice to expire with one of its periods if there are expressions showing that the time was unrestricted when the notice might be served: Wembley Corporation v Sherren (1938) 4 All ER 256: Soames v Nicholson (1902) 1 KB 157. If the notice may be given at any time, its prescribed currency may terminate on any date. In Doe d. Pitcher v Donovan (1809) 1 Taunt 555 (127 ER 949) the premises were let at a yearly rent from Michaelmas to quit at a quarter's notice. After five or six years a quarter's notice to quit at Midsummer was given. It was decided by the Court of Common Pleas that the notice was bad because it did not expire at the end of a year, viz Michaelmas. But the report says -- "Chambre J observed, in the course of the argument, that the meaning of the quarter's notice depended upon the whole contract; if it was a tenancy from year to year, with a quarter's warning, it would be a quarter ending with the year: but if it were a demise for one year only, and then to continue tenant afterwards, and quit at a quater's notice, it would be a quarter ending at any time" (1809) 1 Taunt, at pp 557, 558 (127 ER, at p 950). This appears to me to be a correct view of the matter. Chambre J meant, of course, that, if the tenancy was not periodical, the interpretation would be different and the notice stipulated for would not be considered to be one expiring with a year or a division of a year.
In the agreement before us the parties expressed the term as one indefinitely continuing until notice and excluded for three years the possibility of giving of a notice. So far as their intention goes, it seems clear that they did not mean the tenancy to be from year to year, from month to month or from week to week. During the first three years, at all events, the reservation of a weekly rent could not justify a construction of the term as by the week and the payment of the rent monthly could not justify a construction as by the month. It is true that the indefinite description of the term, the absence of a definite terminus ad quem, might make it necessary to treat the tenancy as periodical so as to obtain a term recognized by the common law. It could not be a tenancy at will, because of the provision against termination except on a month's notice and then not for three years: see per Isaacs J in Landale v Menzies (1909) 9 CLR 89, at pp 130-132. But it would be difficult to regard the reservation of a weekly rent or the provision for monthly payment of rent in advance as a ground for treating as a monthly or weekly tenancy one that must according to the terms of the contract continue for three years at least. The case is unlike that of Moore v Dimond (1929) 43 CLR 105 in one respect, namely, the agreement for the minimum term is not lacking in form. For the requirement of a seal does not apply to a demise for a term which may end at or before the end of three years, as the present tenancy might have done: see Re Knight; Ex parte Voisey (1882) 21 Ch D 442, at p 458 per Brett LJ But here, as in Moore v Dimond (1929) 43 CLR 105, the law finds it necessary to ascribe a known term or tenure to the holding or occupation of the tenant. In the present case the reason is that the agreement fixes a term of indefinite duration defeasible by notice but subject to a minimum period. That is not itself a term. In Moore v Dimond (1929) 43 CLR 105 it was because the actual intention of the parties failed at common law for want of form. But the result is the same. For the reasons explained at length in the majority judgment in that case (1929) 43 CLR 105, at pp 113-117 where there is an indefinite letting the law ascribes a term from year to year unless there are reasonably clear indications of some other tenure.
The tenancy agreement in this case discloses nothing to lay hold of but the two provisions as to rent. But, in view of the minimum period of three years, it would be quite ridiculous to raise from them an implication against the tenancy from year to year and reduce it to a monthly or weekly term. The fact that the estate or interest is a tenancy from year to year in the contemplation of the common law does not mean that its mode of termination is not that specified in the agreement of the parties. If they had agreed on a fixed term greater than three years, the tenancy would automatically terminate on its expiry notwithstanding that owing to the want of a seal the legal estate or interest had to be considered a tenancy from year to year: see Moore v Dimond (1929) 43 CLR, at p 113 and cases there cited. So the provision as to a month's notice is applicable and would enable either party to bring the tenancy from year to year to an end at the expiration of the minimum period. Any provision may be made for the termination of a tenancy from year to year, notwithstanding the reservation of an annual rent: see cases cited in Halsbury, Laws of England, 2nd ed, Vol 20, p 130, note (n). The fact that the minimum period ends does not appear to me to be a reason for converting the tenancy to one by the month or the week.
Independently altogether from the rather technical necessity of ascribing a term and fixing upon a tenancy from year to year, the reasons for treating the tenancy as one by the month or the week seem to me to be inadequate. The parties meant the term to continue indefinitely until brought to an end by notice. They had to fix a rent and calculate it according to period. The period of enjoyment they selected for this purpose was a week. For the purpose of payment, however, they evidently considered this interval of time too short. To avoid frequent payments of rent they therefore fixed a monthly amount and said it must be paid in advance. From this it is hard to infer that they meant to create either a weekly or a monthly tenancy, and, if a choice had to be made between the two, I do not know on what grounds it should proceed, unless perhaps the period of enjoyment selected as the basis of calculation, viz a week, should be treated as having stronger claims than the periodicity of the actual payments, a month.
The strongest argument in favour of the implication of a condition or restriction controlling the generality of the provision for a month's notice and limiting it to a notice expiring with a rental month is that, otherwise, a month's rent may be payable in advance though a notice has been given and the remaining period of the tenancy is less, perhaps much less, than a month. But if this is so intolerable a result of the bare words of the agreement that some implication must be made to avoid it, then I should have thought the more business-like implication was one which made the stipulation for payment of rent in advance at monthly intervals inapplicable once a notice terminating the tenancy had been given, that is if the expiry date would create a broken period. That event must occur unless the notice expired with a rental month. Then the weekly rent would be payable for the broken period. If it were considered payable in arrear, it would be apportionable according to the days: Ellis v Rowbotham (1900) 1 QB 740. If the weekly rent were regarded as taking the place of the monthly amounts in the stipulation for payment in advance, then a week's rent would be payable in advance for every week or part of a week in the broken period. But, however this may be, I am unable to see in the argument any sufficiently strong ground for introducing an implication that the month's notice must expire with any given period, whether a week, a month or a year.
One point remains. It may be thought that the reference to monthly tenancy in the notice of the owner's intention to apply to a court of petty sessions vitiates that documents unless the tenancy is truly by the month: See Westacott v Williams (1896) 18 ALT 110. But precise technical exactness in such a document is not indispensible to validity and I think that, as the tenancy was terminable by a month's notice and the rent payable was monthly, this reference could not mislead the tenant (see per Cussen J in Carter v Aldous (1921) VLR 234, at p 238 as to an erroneous date) and that it was sufficient for the substantial purpose such a notice has in view: See Ellis v Dalgleish (1921) VLR 333, at p 337.
In my opinion the appeal should be dismissed.
Grosglik v Grant
This is an appeal from the decision of a police magistrate in summary proceedings under Pt v of the Landlord and Tenant Act 1928 by a landlord to recover possession of premises from his tenant. The magistrate decided to issue a warrant of possession.
The tenant had relied upon the National Security (Landlord and Tenant) Regulations and he now appeals directly to this Court under s 39(2)(b) of the Judiciary Act as a matter of Federal jurisdiction, although his ground of appeal depends upon State law.
Proceedings to recover possession from a tenant are so restricted and controlled by the regulations that a landlord's claim against a tenant for possession of the demised premises must depend upon fulfilment of the conditions they prescribe and therefore may be considered to arise under a law of the Commonwealth. I am, therefore, prepared to accept the view that the magistrate exercised Federal jurisdiction. That being so, an appeal lies to this Court even although it is supported upon no grounds except those arising under State law. The ground of appeal argued was that the landlord did not establish the validity of the notice to quit. In my opinion the burden lay upon the landlord, as complainant, of showing by evidence that the defendant occupied the premises as tenant holding from him and that the tenancy had been determined. In the circumstances this burden involved proof that an effective notice to quit had been given. The evidence showed that the defendant had occupied the premises for some fourteen or fifteen years and had always paid a monthly rent. He went in under a lease, but before the magistrate the instrument was not produced and its nature and terms were not proved. The document, we are told, has since been discovered; but the defect in proof cannot be cured in this Court, which decides appeals upon the material before the Court appealed from: Harrison v Goodland (1944) 69 CLR 509, at p 521.
As matters stand, the presumption is that the defendant held under a tenancy from month to month. Three years ago the complainant purchased the land and buildings a floor of which the defendant has so long occupied and the defendant appears to have recognized him as his landlord by paying him the rent. The complainant gave a month's notice to quit on the footing that it was a monthly tenancy and required the defendant to deliver up possession on 25th September 1946. There is nothing to show that the defendant held the premises for monthly periods extending from the twenty-fifth day of one month to the twenty-fourth of the next month. Even the date to which rent was calculated was not stated. In my opinion it was necessary for the complainant to offer proof at least of circumstances from which it might have been inferred that the monthly tenancy ran from the twenty-fifth of each month. The decision of the Court of Appeal in Lemon v Lardeur (1946) 1 KB 613 now establishes in England that, when the parties have made no provision as to the length or terminating date of the notice by which a tenancy may be determined, then in a tenancy from month to month or from week to week a month's or a week's notice must be given terminating with a periodical month or week as the case may be. As explained by Cussen J in Carter v Aldous (1921) VLR 234, at pp 238, 239, a different rule was early adopted in Victoria: See Mornane v All Red Carrying Co Pty Ltd (1935) VLR 341. But I can see no reason why on this matter the law as now settled by the Court of Appeal should not have as much application in Victoria as elsewhere. It is, I think, dependent not upon custom or usage or upon local circumstances but upon implications to be attributed to a rule of the common law.
I am, therefore, of opinion that the complainant failed to show that, apart from any special operation ascribed to reg 62 of the National Security (Landlord and Tenant) Regulations, the defendant's tenancy had been lawfully terminated and accordingly that an order for the issue of a warrant of possession ought not to have been made in his favour. I do not think that reg 62 operates in a way which will overcome the objection. Apparently part of its purpose is to make a notice complying with reg 58 and therefore with reg 59 effective, although in order so to comply the notice names a date for delivery up of possession which does not coincide with that required under the terms of the tenancy. But the last part of reg 62 makes it necessary that it shall not be an earlier date than that on which, according to the terms of the tenancy, the notice to quit might have terminated the tenancy. We do not know on what date the tenancy might have been terminated.
The appeal should be allowed and the complaint remitted to the magistrate for rehearing.