Amad v Grant
74 CLR 327(Decision by: Mctiernan J)
Amad
vGrant
Judges:
Latham CJ
Rich J
Dixon J
Mctiernan JWilliams 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:
Mctiernan J
Amad v Grant
In my opinion this appeal should be dismissed. The question to be decided is whether the notice to quit was sufficient to terminate the tenancy. The tenancy was created by an express contract. The notice was sufficient so far as regards its length. The controversy is centred on the question whether the terms of the contract require that it should expire on the 17th day of a month. The day on which the notice was expressed to expire was not such a day. The contract was of a special kind. The parties were free to contract that it be determined by notice expiring at any time and the law will give effect to their agreement. The duration of the tenancy is described in the habendum. In Foa's book on the Law of Landlord and Tenant, 5th ed (1914), at p 106, the following principle is stated: "The habendum is the proper place to look to in the lease for the purpose of ascertaining the true period of the letting; but the other parts of the instrument may be looked at, though, in order that they may control the habendum, they must establish clearly that it could not have been the intention that the habendum should operate according to its words." The words of the habendum are: "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." In Landale v Menzies (1909) 9 CLR 89, at pp 100, 101 Griffith CJ said: "A contract for the exclusive occupation of land for a determinate period, however short, constitutes a lease: R v Morrish (1863) 32 LJMC 245. A period determinable at the will of either party is such a period. In such a case the lease is called a lease at will. And, in one sense, and perhaps in strictness, every lease which is not for a term certain is a lease at will, although of late years the phrase is ordinarily used to describe a tenure under which the lessor may determine the lease instanter." The Chief Justice added: "A lease until either party shall give six months' notice to the other does not constitute a tenancy from year to year, but it is a good lease: Doe d. King v Grafton (1852) 18 QB 496 (118 ER 188). I suppose it is technically a lease at will, and it was so described by counsel arguendo in Lewis v Baker (1906) 2 KB 599. Farwell LJ, however, described it as a 'term certain' (1906) 2 KB, at p 603 ".
The words of the habendum grant a term of three years and a further term determinable by a month's notice. There is no need to classify the tenancy created by the contract. The parties were free to make a tenancy of any duration they pleased. The important consideration is that it is not possible to get out of the words of the habendum an intention to create a periodic tenancy. The present contract resembles that in Todd v Enticott (1887) 13 VLR 475. There the contract said that the tenancy was to be for one year at least and that it was not to cease until one month's notice had been given by either party to the other. The Full Court of Victoria held that it was not a yearly tenancy and it was determinable after one year by a month's notice at any time. The magistrate who heard the present case relied upon this decision.
In order to uphold the argument that the tenancy is determinable by a notice expiring on the seventeenth day of the month and on no other day of a month, it would be necessary to imply a stipulation which is not expressed in the contract. The argument is based upon the terms of the contract with respect to rent. The principle upon which the court should determine whether a condition not expressed should be implied in a contract is stated by Lord Esher MR in Hamlyn & Co v Wood & Co (1891) 2 QB 488. The passage is as follows: "I have for a long time understood that rule to be that the Court has no right to imply in a written contract any such stipulation, unless, on considering the terms of the contract in a reasonable and business manner, an implication necessarily arises that the parties must have intended that the suggested stipulation should exist. It is not enough to say that it would be a reasonable thing to make such an implication. It must be a necessary implication in the sense that I have mentioned" (1891) 2 QB, at p 491 . Considering the contract in that way, I do not agree that the implication necessarily arises that after the tenancy had run for three years the landlord was not free to give a month's notice expiring on any day of the month in order to terminate the tenancy.
I agree that the law laid down in Lemon v Lardeur (1946) 1 KB 613 (1946) 1 KB613 would be the right law to apply if the contract created a tenancy from week to week or from month to month.
Grosglik v Grant
I agree that this appeal should be allowed and the complaint remitted to the magistrate. It does not seem to me to be necessary to add anything by way of reasons for this order.