Amad v Grant
74 CLR 327(Decision by: Latham CJ)
Amad
vGrant
Judges:
Latham CJRich J
Dixon J
Mctiernan 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
Decision by:
Latham CJ
These two cases are appeals by orders to review from decisions of a magistrate ordering that the appellants deliver up possession of certain premises of which they have been in possession as tenants. The order was made under the Landlord and Tenant Act 1928 (Vict), Pt V. The jurisdiction of the magistrate depended upon the term or interest of the tenants having been "duly determined by a legal notice to quit or otherwise": See s 69. The landlord Grant relied upon determination of the tenancies by legal notices to quit. The National Security (Landlord and Tenant) Regulations contain various provisions limiting the right of a landlord to recover possession of premises from tenants, and the tenants relied upon defences for which the regulations provided. The orders to review were granted upon the basis that the magistrate was exercising Federal jurisdiction, and this view has not been contested upon the appeals. Analysis of the facts in each case shows that the important question which arises is whether, in the case of a monthly tenancy, a notice to quit must expire at the end of one of the monthly periods of the tenancy.
In Amad's case it was proved that Grant's predecessor in title on 17th May 1937 made an agreement in writing with Amad to let the first floor of premises at 353 Exhibition St, Melbourne, "at the weekly rent of £2 2s 6d payable in advance, such tenancy to commence on the 17th day of May 1937 and not cease (except as hereinafter provided) until one month's notice in writing shall have been given by either party to the other and such tenancy to continue for the term of three years at the least. 1. The rent is to be paid by the said tenant (a) Monthly in advance the first of such payments amounting to £9 4s 2d to be paid on the signing hereon and hereafter such similar amounts on the 17th day of each month following." After the three years mentioned in the agreement had expired, the tenant continued to occupy the premises, paying the monthly rent specified in the agreement.
The landlord on 24th July 1946 gave a notice to quit on 25th September 1946. It was not contended that, if the criterion of the sufficiency of a notice to quit is, in the case of such a tenancy as the agreement between the parties creates in this case, that it should be a reasonable notice, the nine weeks' notice was not a reasonable notice. But the notice did not expire on the 17th day of the month, which was the date of the expiry of monthly periods under the tenancy. The magistrate held that the tenancy was a monthly tenancy and was determinable by a month's notice to quit expiring at any time.
It was argued that the agreement created a tenancy from year to year. In my opinion it is clear that this was not the case. There was obviously no actual agreement for a tenancy from year to year. The circumstances did not show a holding over, after an expired term, under a tenancy at sufferance or a tenancy at will. The tenant did not hold over, but continued to hold on the terms of the agreement. There was no payment of rent as an annual rent. There was a payment only of a monthly rent. The agreement created a periodic tenancy, namely a monthly tenancy expressly made determinable by a month's notice in writing. It is settled that in the case of such a tenancy there is not a new tenancy with the beginning of each month (Bowen v Anderson (1894) 1 QB 164) but a letting for a period determinable by notice to quit: See Mellows v Low (1923) 1 KB 522. In Todd v Enticott (1887) 13 VLR 475, there was an agreement for a tenancy not to cease "until a month's notice shall have been given by either party to the other and which was to continue for one year at the least." It was held that this was not a yearly tenancy but a monthly tenancy with a proviso that the notice by which the tenancy was to be determined should not be given so as to terminate it before the expiry of one year. So in the present case the tenancy is a monthly tenancy with a proviso that the tenancy shall not be terminated within the first three years.
In Todd v Enticott (1887) 13 VLR 475 it was held that the notice might be given at any time of the year. So also in the present case the notice may be given at any time during the year. It must (by reason of the express terms of the agreement) be a month's notice in writing, and the question which has to be decided is whether a notice which is otherwise in accordance with the terms of the agreement is invalid because it does not expire with a month of the tenancy.
In Mornane v All Red Carrying Co Pty Ltd (1935) VLR 341 Mann CJ held that in the case of a weekly tenancy a notice to quit need not expire at the end of a periodic week, basing his decision upon the view which he took of the decision of the Full Court in Calvert v Turner (1865) 2 WW & a'B (L) 174. In Calvert v Turner (1865) 2 WW & a'B (L) 174, however, what was held was that no notice to quit was necessary in the case of a weekly tenancy in order to determine the tenancy. The notice which was given did not expire with one of the weeks of the tenancy, but the decision was not that the notice was not invalid for that reason. The decision was, "Strictly speaking, we think that no notice was necessary" (1865) 2 WW & a'B (L), at p 175. In R v Sutcliffe; Ex parte Brooks (1878) 4 VLR (L) 150, it was held by the Full Court that in the case of a weekly tenancy, although no formal notice to quit was necessary, the Landlord and Tenant Act required that the interest of the tenant should have ended or been duly determined by legal notice to quit or otherwise, and that therefore some demand of possession was necessary before proceedings could be taken under the Landlord and Tenant Act: See also Fitzgerald v Button (1891) 17 VLR 52. But in Kurrle v Heide (1898) 4 ALR 294 Hodges J held that, in order to determine a weekly tenancy, some reasonable notice to quit should be given, and that it should expire at the end of one of the weekly periods. In Carter v Aldous (1921) VLR 234 Cussen J held that in the case of a weekly tenancy it was not necessary that a week's notice should be given, but reasonable notice should be given and a week's notice would probably in all cases be held sufficient to determine the tenancy. His Honour expressed no opinion as to the date when a notice to quit should expire.
In Mornane's Case (1935) VLR 341 Mann CJ considered both the abovementioned cases, and certain conflicting English cases. In Simmons v Crossley (1922) 2 KB 95 it had been held in the case of a monthly tenancy that, in order to determine it, reasonable notice must be given and that a notice was not rendered invalid merely because it expired on a day other than the last day of the month, calculated from the commencement of the tenancy. This decision of a Divisional Court was not followed by another Divisional Court in Queen's Club Gardens Estates Ltd v Bignell (1924) 1 KB 117, where in the case of a weekly tenancy it was held that a notice to quit, in order to be valid, should be a week's notice and should expire at the end of a periodic week from the commencement of the tenancy. Lush J based his decision upon a consideration of the nature of a periodic tenancy as explained in Bowen v Anderson (1894) 1 QB 164. A periodic tenancy, whether it be yearly, quarterly, monthly or weekly, is not a series of separate tenancies, but is a single tenancy which continues until it is duly determined. Thus, when a new period begins the tenant is entitled, as Lush J explains, to continue to hold as a tenant for the complete period which has begun -- "When a fresh week begins the tenancy continues for another week, just as, in the case of a quarterly tenancy, when a fresh quarter begins, the tenancy continues for another quarter" (1924) 1 KB, at p 125. The decision in Simmons v Crossley (1922) 2 KB 95 had been founded in part upon two Irish decisions which are examined by Lush J in the Queen's Club Case (1924) 1 KB 117. This analysis, in my opinion, justifies the conclusion of the learned judge that those authorities did not really support the proposition which was laid down in Simmons v Crossley (1922) 2 KB 95.
In Precious v Reedie (1924) 2 KB 149 it was held by a Divisional Court, following the Queen's Club Case (1924) 1 KB 117, that, in order to determine a monthly tenancy by notice to quit, the notice, in the absence of special agreement, must be a month's notice expiring at the end of a periodic month from the commencement of a tenancy.
In this state of the authorities the matter came before the Court of Appeal in Lemon v Lardeur (1946) 1 KB 613. The Court of Appeal considered the Queen's Club Case (1924) 1 KB 117 and Simmons v Crossley (1922) 2 KB 95, approved the former decision and overruled the latter decision. In my opinion the reasoning of Lush J in the Queen's Club Case (1924) 1 KB 117 is convincing. It has been approved by the Court of Appeal and this Court should adopt the same conclusion, namely that in any periodic tenancy, whether it be yearly, quarterly, monthly or weekly, the notice to quit must (unless the parties have otherwise agreed) expire at the end of a period of the tenancy. The present cases do not raise the question of the length of notice required, because it is not disputed in either case that the notices were sufficient in this respect.
In Amad's case there is a further consideration which, in my opinion, is of itself conclusive upon the point in question independently of the matters already mentioned. Under the agreement between the parties rent was payable in advance. If a notice to quit did not expire at the end of one of the monthly periods, the position would be that the tenant would be bound to pay a full month's rent when a month began, and, the notice to quit expiring at a time not being the end of a month, would, if such a notice were held to be valid, nevertheless be bound to go out of possession before the expiration of the period for which he had paid rent. I can see no principle which would entitle the tenant to recover part of the rent which he had paid -- he would not have made the payment under any mistake of fact. Rent payable in advance is not apportionable: Ellis v Rowbotham (1900) 1 QB 740. These difficulties, however, do not arise if it is held that a notice to quit is not good in the case of a periodic tenancy unless it expires with the period of the tenancy.
Thus in Amad's case, where the notice to quit did not expire with the month of the tenancy, the tenancy was not terminated by notice to quit or in any other manner, and the order for recovery of possession therefore should not have been made. The appeal should be allowed in this case.
Grosglik was the tenant of the seconf floor of 353 Exhibition St. An order was made for the recovery of possession from him. The order was made upon the basis that a monthly tenancy was proved and that a notice to quit had determined the tenancy. The notice to quit was given on 24th July for 25th September. It was not suggested that it was not a reasonable notice, but there was no evidence that it expired with a period of the tenancy. The evidence which was before the magistrate showed merely that Grosglik, who was in occupation before Grant became the owner of the premises, held under a written lease or agreement for a lease the terms of which were unknown, as the document had been lost. The only evidence was that he paid rent by the month. This was evidence of a monthly tenancy, but there was no evidence of the day of the month upon which the tenancy began. If the notice to quit had been given to expire at the end of the next complete month of the tenancy after the service of the notice, the notice would have been good: Sidebotham v Holland (1895) 1 QB 378; Queen's Club Case (1924) 1 KB, at p 126. But, as this procedure was not adopted, the position is that the notice to quit was bad because it was not shown that it expired with a period of the tenancy. Accordingly, upon the evidence before the magistrate, the order for recovery of possession should not have been made, and the appeal should be allowed in this case.
The court was informed during the hearing of these appeals that a lease or agreement for a lease to Grosglik had just been discovered. For reasons which I stated on behalf of the court, permission to adduce this fresh evidence before this court was refused (Grosglik v Grant (No 2) Post, p 151. The fact that the appeal is allowed will not prevent the landlord giving a new notice to quit and taking fresh proceedings. I would therefore allow the appeal and order that the complaint be dismissed.
The conclusions which I have reached are not, in my opinion, affected by reg 62 of the National Security (Landlord and Tenant) Regulations. This regulation provides in the first place that a notice to quit given in accordance with reg 58 shall, if the tenancy in respect of which the notice was given has not otherwise terminated, operate so as to terminate the tenancy at the expiration of the period specified in the notice. Reg 58(3) requires that a notice to quit shall be given "for a period determined in accordance with" reg 59. Reg 59 prescribes a minimum period of seven days, together with an additional seven days for each completed period of six months occupation. It is not disputed that the notices to quit given in the present cases satisfied the requirements of regs 58 and 59. Reg 62 further provides, however, that nothing in that regulation shall operate so as to determine any tenancy before the date on which it would have terminated if the regulation had not been made. The effect of these provisions is that a notice given in accordance with reg 58 (that is, I understand, for the minimum period prescribed in reg 59, and truly upon one or more of the grounds specified in reg 58, and served in the manner thereby allowed) shall determine a tenancy if it has not otherwise been terminated, but not at an earlier date than that on which it would have terminated apart from the regulation. In my opinion these provisions mean that the regulations must be observed, but that compliance with the regulations by a lessor will not enable him to determine a tenancy at a date earlier than that at which he could have determined it if the regulations had not been made. Thus if a tenant has a right, under the law apart from the regulations to a particular length of notice to quit, that right is preserved. Accordingly, reg 62 does not prevent the tenants in these cases from relying upon rules of law relating to the time at which a monthly tenancy may be determined by a notice to quit.