Amad v Grant
74 CLR 327(Decision by: Rich J)
Amad
vGrant
Judges:
Latham CJ
Rich JDixon 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:
Rich J
Amad v Grant
Amad v Grant. -- In this appeal, the parties have chosen to regulate their legal relations by a document prepared with lofty indifference to rules of law or practice with the natural result that they have succeeded in bogging themselves in the morass which awaits those who diverge from the straight and narrow path.
The document is dated 17th May 1937. By it a person as landlord agrees to let, and a person as tenant agrees to take, the premises in question at a weekly rental of £2 2s 6d payable in advance, the 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 to continue for three years at least. The rent is to be paid monthly, in advance, the first payment, amounting to £9 4s 2d to be paid on the signing of the document, and thereafter similar amounts on the 17th day of each month following. The notice to quit which gave rise to the present proceeding was dated 24th July and required that possession should be delivered up on 25th September 1946.
The first question is, what is the nature of the tenancy provided for by this document? Tenancies are of two kinds, tenancies at will and tenancies for terms. A tenancy for a term may be for a single term, or it may be periodical, that is, for the period of a specified term, but with provision for the continuation of the tenancy for successive periods until it is terminated in accordance with some provision agreed upon by the parties or implied by law in the absence of agreement.
By the document in the first instance the rent is stated on a weekly basis (payable in advance). But the tenancy, which is commenced on 17th May 1937, is not to cease until one month's written notice shall have been given by either party, and it must continue for at least three years. The special provision with respect to payment of rent is significant. It is to be paid monthly in advance, the first payment of £9 4s 2d to be made on 17th May 1937 and thereafter a similar amount on the 17th day of each succeeding month. Now, £9 4s 2d is four and one-third times £2 2s 6d, the agreed rent when calculated on a weekly basis. To reduce weekly payments to a calendar monthly basis, it is necessary to multiply the weekly amount by four and one-third, since twelve times four and one-third gives the number of weeks in the calendar year. Hence the parties are seen to be endeavouring to create a tenancy, to commence on the 17th of each month, and which is not to terminate except by a month's notice on either side. Superadded is a provision that the tenancy must continue for at least three years. We should, I think, give effect to the apparent intention of the parties, so far as the law will permit, however inartifically that intention may be expressed. Benignae sunt faciendae interpretationes chanarum propter simplicitatem laicorum. I think that what the parties have been struggling to provide for, and what they have sufficiently provided for, is a calendar monthly tenancy beginning on 17th May 1937, terminable by a calendar month's notice on either side, subject to the condition that it must continue at least until 17th May 1940, with the result that no month's notice to quit at any earlier date can be effectual. I know of nothing in the law of landlord and tenant which prevents the recognition of such a tenancy, or full effect being given to it.
It is now settled that, at common law, in the case of a periodical tenancy, a notice to quit, to be valid, must expire at the end of a period, Lemon v Lardeur (1946) 1 KB 613, in the absence of some provision by the parties to the contrary, as in Soames v Nicholson (1902) 1 KB 157. It follows, in my opinion, that the notice to quit given in the present case was invalid, since it did not provide for the giving up of possession on, or, it would appear from the case of Dagger v Shepherd (1946) 1 KB 215, on or before, the 17th of a month. National Security (Landlord and Tenant) reg 62 does not assist the landlord, in view of reg 59(2)(b).
For these reasons, I am of opinion that the appeal succeeds.
Grosglik v Grant
In my opinion the facts in this case bring it within the periodic tenancy class in which a notice to quit must expire at the end of a current period of the tenancy and the onus is on the landlord to show that it has done so: Lemon v Lardeur (1946) 1 KB 613. The complainant, assuming that the tenancy was a monthly tenancy, gave a notice to the defendant requiring him to deliver up possession on 25th September 1946 but he was unable to lead evidence to prove that the tenancy ran from the 25th of each month. And I do not think that reg 62 of the National Security (Landlord and Tenant) Regulations affords the complainant any relief or takes his case out of the rule to which I have referred.
Accordingly I am of opinion that the appeal should be allowed and the complaint remitted to the magistrate for rehearing.