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 Street,
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 (1) 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. (2) must be con-
sidered 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
(1) (1946) 1 K.B. 613. (2) (1935) V.L-R. 341.