Amad v Grant

74 CLR 327

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(Judgment by: Williams J)

Amad
vGrant

Court:

Judges: Latham CJ
Rich 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

Hearing date: 5-7 March 1947
Judgment date: 8 May 1947

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Judgment by:
Williams J

These two appeals have been heard together and can be disposed of in the one judgment. The appellant Wadee Amad occupies the first floor and the appellant Grosglik the second floor of 353 Exhibition St, Melbourne. The respondent Grant is the owner of the building.

On 24th July 1946 the respondent gave the appellants notice to quit their respective floors on 25th September 1946, the notices stating that they held their respective floors as tenants from month to month, and that the notices to quit were given under the National Security (Landlord and Tenant) Regulations on the ground that the respective floors were reasonably required for occupation by the respondent in his trade, profession, occupation or calling. Neither tenant vacated his floor pursuant to the notice to quit, and the respondent thereupon took summary proceedings under the Landlord and Tenant Act 1928 (Vict), Pt V, to recover possession.

Upon the hearing of the applications the magistrate ordered that warrants of ejectment should issue in favour of the respondent. The appeals come to this court by way of orders nisi to review the orders of the magistrate granted by Starke J The grounds in both orders relate to the failure by the respondent to give valid notices to quit at common law and do not challenge the decision of the magistrate that in accordance with the National Security (Landlord and Tenant) Regulations the respondent had established that the floors were reasonably required for occupation by the respondent for the purposes of his trade.

The rights of the parties in the appeal of Wadee Amad depend upon the true construction of an agreement made on 17th May 1937 between Cooke, from whom Grant subsequently purchased the property, and Wadee Amad. In Grosglik's case there is evidence that Grosglik paid rent monthly, but there is no evidence of the day of each month on which the rent became due or was paid. During the hearing of Grosglik's appeal counsel for the respondent stated that his client had discovered a written lease between Grosglik and Cooke, but Grosglik's counsel would not consent to the lease being tendered in evidence, and we held, for reasons given by the Chief Justice, that we had no power to admit fresh evidence under Pt II, Section IV, r 1, of the rules of court post p 355.

I shall deal first with the appeal of Wadee Amad. The agreement of 17th May 1937, so far as material, provided that, in consideration of the rent thereinafter reserved and the covenants and agreements thereinafter contained, the landlord agreed to let and the tenant to take the premises situate on the first floor of 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 to cease (except as thereinafter provided) until one month's notice in writing should have been given by either party to the other and that such tenancy should continue for the term of three years at the least, the rent 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 agreement and similar amounts on the 17th day of each month following. The period of three years expired on 17th May 1940, so that on 24th July 1946, the date of the notice to quit, the appellant was holding under a tenancy at a weekly rent payable in advance not to cease until one month's notice in writing should have been given by either party, the rent to be paid monthly in advance on the 17th day of each month. In Lemon v Lardeur (1946) 1 KB 613 the Court of Appeal has recently decided, after reviewing the relevant English authorities, that it is an incident of all periodical tenancies, whether from year to year or month to month or week to week, that the notice to quit, in the absence of an agreement to the contrary, must expire on the last day of the tenancy. Prior to this case the authorities, while unanimous to this effect in the case of a yearly tenancy, were somewhat in conflict in the case of monthly and weekly tenancies. I have no doubt that this Court should conform to the decision of the Court of Appeal, with which I respectfully agree. It follows that Mornane v All Red Carrying Co Pty Ltd (1935) VLR 341 must be considered to be overruled. A tenancy originally for a minimum term of three years, which provides for the payment of weekly or monthly rent in advance, and gives a right to either party to determine it by one month's notice in writing, is clearly capable of raising vexed questions whether, after the expiration of the three years, it is a yearly, monthly or weekly tenancy, or whether it is simply a tenancy for an indefinite period until determined by one month's notice in writing. The overriding provision in the agreement is for payment of the rent monthly in advance, so that the earlier provision for payment of the rent weekly in advance would appear to have been inserted merely as a means of computing the amount of the monthly rent. These monthly payments are not calculated as aliquot portions of a yearly rent. They are simply payments of rent from month to month under an agreement which provides for its termination by either party giving one month's notice in writing to the other. The tenancy is, in my opinion, a tenancy from month to month and not a tenancy from year to year or week to week: Halsbury, Laws of England, 2nd ed, Vol 20, p 125, note (i): Ellis v Dalgleish (1921) VLR 333.

The crucial question is whether the month's notice must be given so as to expire on the 16th day of a month or may be given so as to expire at any time. The tenant is under an absolute obligation to pay a month's rent in advance on the 17th day of each month. There is no provision for any apportionment of the rent if the notice can expire during the currency of the succeeding month. The Apportionment Act (Supreme Court Act 1928 (Vict), s 73) does not apply to payments of rent in advance: Ellis v Rowbotham (1900) 1 QB 740. It would seem that the payment of a month's rent in advance must have been intended to confer upon the tenant the right to the exclusive possession of the demised property for a month. But if the month's notice need not expire on the 16th day of a month, either the tenant must pay a whole month's rent for a right to occupy the property for part only of the succeeding month, or an implication must be read into the agreement that upon the giving of a notice to quit expiring during a month, the rent for that month becomes apportionable. It is noticeable that in cases in which it has been held that a periodical tenancy could be terminated by a notice to quit expiring at any time the express agreement contained the words "at any time" or other words to that effect: See for instance Bridges v Potts (1864) 17 CBNS 314 (144 ER 127); Cannon Brewery v Nash (1898) 77 LT 648; Soames v Nicholson (1902) 1 KB 157; Mayo v Joyce (1920) 1 KB 824; Wembley Corporation v Sherren (1938) 4 All ER 255; Land Settlement Association Ltd v Carr (1944) 1 KB 657, at p 668. In one of these cases, Bridges v Potts (1864) 17 CBNS 314 (144 ER 127), the court was strongly influenced in deciding that the tenancy could be so terminated by the fact that the agreement contemplated an apportionment. In Wembley Corporation v Sherren (1938) 4 All ER 255 there was an express provision for an apportionment. There are cases in which the judgments at first sight lend some support to the view that without such words the notice could expire at any time: See for instance Doe d. King v Grafton (1852) 18 QB 496 (118 ER 188); Todd v Enticott (1887) 13 VLR 475. But it will be found that the notice in fact expired on the last day of the period, so that these cases are colourless. It seems to me that in order to give effect to the agreement of 17th May 1937 as a whole, and to have regard to a usual incident of periodic tenancies, it is necessary to read the right to give a month's notice to quit as a right to give a notice expiring on the 16th day of a month. This was the view taken in Kemp v Derrett (1814) 3 Camp 510 (170 ER 1463) and Savory v Bayley (1922) 38 TLR 619, cases which correspond to the present case on their facts. For these reasons I would allow the appeal of Wadee Amad.

The facts of Grosglik's case are on all fours with the facts in Lemon v Lardeur (1946) 1 KB 613. There it was held that, in proceedings similar to the present proceedings, the onus was on the landlord to prove the day of the month on which the monthly tenancy expired and that notice to quit had been given so as to expire on that day. The respondent failed to prove these facts, so that I would also allow this appeal, but in view of the discovery of the written lease I would remit the case to the magistrate for further hearing.

In so concluding I have not overlooked the contention of counsel for the respondent that the notices to quit complied with the National Security (Landlord and Tenant) Regulations and that, even if they were ineffective at common law to terminate the tenancies, they derive efficacy from the provisions of reg 62 of these regulations. But I cannot read the concluding words of this regulation as meaning other than that to terminate a periodic tenancy the landlord must give a notice to quit which is effective both at common law and under the regulations. In the present cases the notices to quit should have been for the period and have contained the other particulars required by the regulations and should also have expired on the last day of the month of the tenancies.