Moore v Dimond [1929] HCA 43

'The appellant sued the respondent in the Local Court of Adelaide to recover - - - £16 10s. for the rent of a shop in Adelaide for the week ended 24th November S¥DNEY, 1928. The respondent had been the appellant's tenant at a weekly rent Dee. 12. under a lease for a term which expired on 30th November 1927. In May Knox. 1927 they had made an agreement in writing for a renewal of the lease for 82ey, Rich, five years at a rent of £16 10s. per week, 'The respondent remained in possession Dixon JJ. of the shop for some time after 30th November 1927 and paid the agreed weekly rent up to and including the week which ended on 17th November 1928. The parties failed to agree on the formal instrument for the new lease, and in November 1928 the respondent gave up possession of the shop, The appellant claimed the rent as under an agreement for a lease made in May 1927, and alternatively as upon a tenancy from year to year. The Full Court of the Supreme Court held that the rent could not be recovered under the agreement for a lease as it was not specifically enforceable in the Local Court, and that the tenancy was one from week to week and not from year to year,

Against the latter part of the decision the appellant appealed to the High Court.

Held, that the respondent by continuing in possession under the agreement

for a further term and paying rent became a tenant from year to year.

Decision of the Supreme Court of South Australia (Full Court) reversed,

Dimond, to recover the sum of £16 10s. for rent of a shop in Rund Street, Adelaide, for the week 17th to 24th November 1928. plaintiff in the action claimed the rent under an agreement fo lease contained in correspondence which passed between the pl and the defendant; and in the alternative she claimed the ren from the defendant as a tenant from year to year, alleging that th defendant had held over after the expiration of a registered from the plaintiff to the defendant. The defences substantially we that, if the defendant entered into the agreement referred to in the particulars of claim, it was upon the express condition tl such lease should, with the exception of some variations agree upon, be upon the same terms and conditions as the lease pn viously held by the tenant, which condition was repudiated by th plaintiff, and the defendant thereupon vacated the premises on 1ith November 1928; and that, if the defendant was at any materi times anterior to 17th November a tenant of the said premises, was a tenant at will and determined the tenancy upon the said date The respondent had held the premises in Rundle Street as tenam from the appellant under a registered lease for a term commencin 31st March 1922 and expiring on 30th November 1927 at a wi rental of £10 10s. up to 13th November 1924 and after that at In May 1927 an agreement in writing was entered into by corres pondence between the parties for a further lease for five years on th basis of £16 10s. per week plus rates and taxes. From Ist December 1927 until 17th November 1928 the respondent remained in oceu tion of the premises, paying rent £16 10s. weekly in advance. parties failed to agree on the formal instrument for the new lease, an

the lease of any property where the property does not exceed in the sum of £2,000; which the premises in question admitte

did. The Judge of the Local Court found that the appellant and H.C. or A.

the respondent had, by the correspondence passing between them, made an agreement for a new lease, and held that, as it was specifically enforceable at the suit of the appellant, it was a lease in equity and she was entitled to sue in the Local Court for rent accruing there- under; and held that in any event there was a tenancy from year to year, and that in either view the appellant was entitled to recover. The Judge of the Local Court, however, agreed to state a special case for the opinion of the Full Court of the Supreme Court, which held that, having regard to the value of the property, the Local Court had no jurisdiction to decree specific performance of the agreement for a lease, and without a decree for specific performance rent could not be recovered in equity ; and also held that the occupation and payment of a weekly rent were prima facie evidence of a weekly tenancy and that the claim for rent upon a yearly tenancy failed. From this decision the plaintiff now appealed to the High Court.

Fullagar, for the appellant. Where a tenant holds over after the expiration of a lease and pays rent, prima facie a tenancy from year to year is created. Entry under a void lease plus payment of rent prima facie creates a tenancy from year to year and not a tenancy at will, and where there is a holding over and a payment of rent the same inference arises. Specific performance could not have been decreed by the Local Court and rent could not have been recovered in that Court under a void lease (Foster v. Reeves (1) ). As soon as rent was paid a tenancy from year to year arose (Dougal vy. McCarthy (2); Braythwayte v. Hitchcock (3); Doe d. Hull v. Wood (4) ; Richardson v. Langridge (5) ).

{Isaacs J. referred to Redman on Law of Landlord and Tenant, 7th ed., at p. 15; Coatsworth v. Johnson (6).]

By 1780, when Lord Kenyon was Chief Justice, the common law Courts had, so far as they could, having regard to the Statute of Frauds, treated a tenancy at will as one from year to year (Sm. L.C., 8th ed., vol. 1, p. 109; Doe d. Shore v. Porter (7); Bank of

(1) (1892) 2 Q.B. 255. (4) (1845) 14M, & W. 682; 153 E.R. 649. (2) (1893) 1 Q.B. 736. (5) (1811) 46Taunt, 128, at p. 129; (3) (1842) 10 M. & W. 494, at p. 497; 128 E.R. 277.

152 E.R. 565, at p. 567. (6) (1886) 55 L.J. QB. 220, at p. 222,

H.C. or A. Victoria v. M'Hutchison (1); Box vy. Attfield (2); Moris cg Edmiston (3); Beattie v. Fine (4) ). Moonz [Isaacs J. referred to Caulfield v. Farr (5).}

Diem. There is no inconsistency created by reason of the rent

payable by reference to a week, and there is no other fact in case which affects the implication of a tenancy from year to ye

The rule requiring six months' notice to determine a yea tenancy is considered in Landale v. Menzies (7). [Counsel a referred to Real Property Act 1852 (S.A.) (No. 25 of 1852), sec, 2 Real Property Act 1886, sec. 116; Local Courts Act 1926 (8. (No. 1782), sec. 57.] d

Cleland K.C. (with him Edmunds), for the respondent. Ther no evidence to raise a presumption that there was a tenancy fro year to year, and the question here is, was there any evidence tha justified the conclusion that the parties were not tenants from to year? Woodfall on Law of Landlord and Tenant, 22nd ed., p.' shows that the presumption of a tenancy from year to year may rebutted. If the new arrangement was a completed agreeme there was no room for the presumption of a tenancy from year t year; if the agreement were only provisional, that is inconsis with a holding from year to year. The tenant did not hold ove but held under the new agreement. It depends on the circum n of each case whether the person in exclusive occupation of land

the land in respect of which he has been paying rent, he does n¢ become a tenant from year to year unless the payment is

with reference to a year or to an aliquot part of a year. Paym with reference to an annual rent is the determining factor (Land v. Menzies (8) ). If the tenant continued in occupation of premises in expectation of an agreement being executed, he i liable only for use and occupation and not for rent. There was

(1) (1881) 7 V.L.R. (L.) 452, at pp. (4) (1925) V.L.R. 363, at p. 3745 455, 456, A.L.T. 19, at p. 24. (2) (1886) 12 V.L.R. 574, at pp. 579, (5) (1873) 7 Ir. R. (O.L.) 469. 580; 8 A.L.T, 45. (6) (1856) 2 Legge (N.S.W.) 976. (3) (1907) V.L.R. 191; 28 A.L.T. 148. (7) (1909) 9 C.L.R. 89, at p. 101. (8) (1909) 9 C.LR., at p. 129,

evidence which would justify a jury in finding that there was a H. ©. oF A.

tenancy from year to year. If there wasa valid subsisting agreement, the intention of the parties was that the tenant was not to be a tenant from year to year but a tenant for five years. Secondly, even if it were only a negotiation for an agreement, that would negative any presumption that the respondent was a tenant from year to year. Thirdly, if there was a valid agreement, but the landlord repudiated it, in that case the respondent still cannot be held to be a yearly tenant, though he may be liable for use and occupation. It is a question of fact as to what the parties really agreed.

Fullagar, in reply, referred to Lennon v. Scarlett & Co. (1); Foa's Law of Landlord and Tenant, 6th ed., pp. 12, 13. [Dixon J. referred to Lee v. Smith (2).]

The following written judgments were delivered : - Kyox €.J., Ricn anp Dixon JJ. The appellant brought an action against the respondent in the Local Court of Adelaide to "recover the sum of £16 10s. for rent of a shop in Rundle Street, Adelaide, for the week ended 24th November 1928. The respondent had been the appellant's tenant at a weekly rent under a lease for a term of five years and eight months which expired on 30th November 1927. In May 1927 they had made an arrangement for a renewal of the lease for a period of five years at a rent of £16 10s. per week. The respondent, accordingly, remained in possession of the shop for some time after 30th November 1927, and he paid the agreed weekly rent up to and including the week which ended on 17th November 1928. The parties failed to agree on the formal instrument for the new lease, and in November 1928 the respondent did his best to put the appellant in possession of the shop, which, for his part, he abandoned. In her particulars the appellant claimed the rent for the week ended 24th November 1928 as under an agreement for a lease made in May 1927, and alternatively as upon a tenancy from year to year.

(1) (1921) 29 C.LLR. 499. (2) (1854) 9 Ex, 662; 156 E.R. 284,

The Judge of the Local Court found that the appellant and respondent had, by correspondence passing between them, ma an agreement for a new lease, and heid that it was specifically

enforceable at the suit of the appellant notwithstanding attempts on her behalf to impose upon the respondent a lease more ad tageous to her than was warranted by the agreement. He went to hold that, in any event, there was a tenancy from year to year the terms and conditions of the former lease as varied by the agreement, and, therefore, that in either case the appellant entitled to recover. The learned Judge agreed, however, to s a special case for the opinion of the Supreme Court under see. of the Local Courts Act 1926. Upon the hearing of the special case the Supreme Court conside that it was manifest - having regard to the value of the property that the Local Court had no jurisdiction to decree specific perfo m- ance of the agreement for a lease, and held that " the Local had no jurisdiction to entertain the action in so far as it pre any claim to the rent which may be payable as an equitable de under the agreement for a lease, if any such agreement exists a is enforceable in a Court of competent jurisdiction." The Suprem

has agreed upon a new lease at a weekly rent and holds oyer a the expiry of a term of years at a weekly rent, and is then fou in oceupation - -for less than a year - paying the new weekly re is a tenant by the year. The Supreme Court considered occupation and payment of a weekly rent were prima facie evident of a weekly tenancy, and that if the character of the rent rejected, there was really nothing in the evidence which afford any clear indication of the intention of the parties respecting tenancy at law. The judgment concluded : - '* For these rea we think that the alternative claim, which alleges a yearly tenan fails. On the other hand it would seem that the defendant ¥ at law a weekly tenant at a weekly rent payable in advance (

v. Smith (1)), and it does not appear that the tenancy was terminated H- C. or A.

before the week ending 24th November 1927 had begun, and that the rent for that week had become payable. But as the particulars of claim stand, the plaintiff is not claiming on a weekly tenancy, and this question does not arise in the action notwithstanding the form of the final question in the case stated. The only answers which we can give to the case are that (1) the Local Court has no jurisdiction to entertain the claim to rent under the agreement alleged in the particulars ; (2) the tenancy was not at law a yearly tenancy. ~The case will be remitted to the Local Court to do what is just in accordance with this opinion, and, in the circumstances, we think that the plaintiff should pay the defendant's costs of the special case."

The appellant now, by special leave, appeals against the second of these answers, but she has prosecuted no appeal against the first answer. We must therefore assume that the rights of the parties in these proceedings are to be determined at law and not by reference to their equitable position, as would be the case if the action were brought in a Court with complete jurisdiction in equity as well as at law. Moreover, in deciding what the character or duration of the respondent's tenancy was, we are not at liberty to draw any inferences of fact. The proceeding before the Supreme Court was a case stated, and there is no provision in the section under which it was stated enabling inferences to be drawn. The duty of the Court is, therefore, to collect from the special case and the doctments which are annexed to it, what the learned Judge meant to state as the ultimate, as distinct from evidentiary, facts and to decide what is their legal result. "It cannot be too clearly understood that on a: ' case stated' the facts stated are to be taken asthe ultimate facts for whatever purpose the cast is stated. The that power is, by

Court is not at liberty to draw inferences unless express words or by necessary implication, specially conferred by some enactment" (per*Zsaacs J.in Mack v. Commissioner of Stamp Duties (N.S.W.) (2) ). 'Unless care is taken to distinguish between 'inference' and 'implication,' confusion is likely to occur. An implication is included in what is expressed: an implication of

(1) (1854) 9 Ex. 662; 156 E.R. 284, (2) (1920) 28 C.L.R. 373, at p. 381.

H.C. or A. fact in a case stated is something which the Court stating the eg 1929. must, on a proper interpretation of the facts stated, be understood Moore to have meant by what is actually said, though not so stated express terms. But an inference is something additional to t] Kaos, Statements. It may or may not reasonably follow from then Bich." but even if no other conclusion is reasonable, the conclusion itself an independent fact ; it is the ultimate fact, the statements upo

which it rests however weak or strong being the evidentiary subsidiary facts'? (per Isaacs J. in Merchant Service Guild « f Australasia v. Newcastle and Hunter River Steamship Co. [No. 1} (1)). It is desirable to set out certain material facts that seem clearly

enough to be, stated or implied in the documents which togeth

make up the special case. The conclusion is sufficiently expres that the appellant and the respondent did, in May 1927, make ; final agreement that the former should grant to the latter a further

term of five years commencing on 30th November 1927 with th determination of the current lease, reserving a weekly rent o £16 10s. and subject to an immaterial exception containing th same terms and conditions as the current lease. This conclusion is stated subject to the opinion of the Court upon the sufficiency o the correspondence between the parties to support it. Another conclusion which sufficiently appears is that the respondent remained, and the appellant permitted him to remain, in occupation of the premises after 30th November 1927 in intended performane of the agreement and that the appellant, as lessor, accepted, and the respondent, as lessee, paid the weekly sum of £16 10s. from 1s December 1927 to 17th November 1928, as the rent stipulated fo in the agreement. An examination of the correspondence shows that it does support the conclusion that a complete agreement made. As the Sgreement for a lease was not a demise, but al executory contract to grant a lease, it could not operate to creat

an interesse termini and, immediately upon the effluxion of the prior term, the respondent became at law (although of course no in equity) a tenant at will only. Upon the first payment of rent h became entitled at law to a term, but the question is whether the term

was from week to week or from year to year. In Hamerton v. Stead H.C. or A.

(1) Littledale J. said: "' Where parties enter under a mere agreement for a future lease they are tenants at will ; and if rent is paid under the agreement, they become tenants from year to year, determinable on the execution of the lease contracted for, that being the primary contract." This statement was approved by Hill J. in Anderson vy. Midland Railway Co. (2). It was well settled at law that the terms and conditions of the agreement, save in so far as they are inconsistent with a tenancy from year to year, apply to the tenancy. It was further settled that the tenancy from year to year continued only during the term contracted for, and expired at the end of that term by effluxion of time without notice to quit, being in the meantime liable to a sooner determination by notice to quit. In Doe d. Davenish v. Moffatt (3) Lord Campbell C.J. says : - " According to Doe d. Bromfield v. Smith (4), and other cases cited on the argument, this would be the effect of a holding under an agreement to grant a lease for a term certain. At the expiration of that term, no notice to quit is necessary ; and it would be strange if the tenant had a more extended interest under an agreement to grant a lease than he would have had under the lease had it actually been granted. In Doe d. Tilt v. Stratton (5) a reason is given for the judgment, which would not apply here, that the agreement for a term certain was a notice to quit at the end of the term. Here the lease, turned into an agreement, contemplated a probability of the tenancy continuing after the expiration of the three years. But, instead of considering the agreement a notice to quit, we think the better view of the subject is that possession under the agreement creates a tenancy from year to year, which may be determined by a notice to quit during the time specified in the agreement for the duration of the lease, but which expires at the end of that time without any notice to quit."" (See Doe d. Oldershaw v. Breach (6).) These principles applied whenever the tenant held under an agreement for a lease whether the agreement was expressed as an

(1) (1824) 3 B. & C. 478, at p. 483; (3) (1850) 15 Q.B. 257, at p. 265; 107 E.R. 811, at p. 813. 117 E.R. 455, at p. 458,

(2) (1861) 3 E, & BE. 614, at p. 622; (4) (1805) 6 East 530 ; 102 E.R. 1390. 121 E.R. 573, at p. 576. (5) (1828) 4 Bing. 446 ; 130 E.R. 839.

H.C. or A. executory contract or consisted of an intended demise for mot 1929, than three years void, because not under seal. : In such cases th Moore contractual intention of the parties is completely expressed i

Ki binding manner, but is formally inefficacious to create a legal in

Dimtoxp. Knox OJ. of the intended duration. Bisos 3. There is little resemblance between such a case and the

many instances in which a person has been let into, or has retair possession of land without any express contract, and the q

is whether he is a tenant, and if so, for a term of what duratiy Such cases occur when a tenant overholds; when a tenant for li has granted a lease in excess of his power and dies before determination, and the remainderman allows the lessee to possession ; when a mortgagor has granted a lease without statu or other power; and when the terms of entry are too vague 6 uncertain to be ascertainable. In such cases payment or ackno lJedgment of rent constitutes evidence of the establishment tenancy, and the fact that the rent is paid by reference to a y or aliquot part of a year, affords evidence of a tenancy from yeat to year. The existence and duration of the tenancy in such a cas

were, however, questions of fact: On the other hand, in Doe d. Thomson v. Amey (1), in deciding that a proviso for re-entry formed a condition of a tenancy from year to year, implied from entry and payment of rent pursuant to an agreement for a lease containing such a condition, Patteson J. said (2): "* The terms upon which tenant holds are in truth a conclusion of law from'the facts of case, and the terms of the articles of agreement."

In the one case the question is what common intention should be attributed to the parties, in the other the question is what duration of tenancy replaces that upon which they have expres agreed ? In the latter case it is difficult to see why the period in respect of which rent is paid should afford a criterion of or determine the term. Nevertheless, in Braythwayle v. Hitchcock (3) Parl said : - * Although the law is clearly settled, that where there ha been an agreement for a lease, and an occupation without payme of rent, the occupier is a mere tenant at will; yet it i been he

(1) (1840) 12 A. & E. 476; 113 ER. (2) ised) LWA &E, atp. 430; 113 892 E.R., at pp. 893-894, (3) (1842) 10 M. & W., at p. 497; oy E.R., at p. 567.

that if he subsequently pays rent under that agreement, he thereby H- ©. or A.

becomes tenant from year to year. Payment of rent, indeed, must be understood to mean a payment with reference to a yearly holding; for in Richardson v. Langridge (1) a party who had paid rent under an agreement of this description, but had not paid it with reference to a year or any aliquot part of a year, was held nevertheless to be a tenant at will only." In point of fact Parke B. was mistaken in his reference to Richardson v. Langridge, because there the land was let to the carrier " without any reference to time" (2), and Mansfield C.J. said (3): - '' Here you speak, all along, of an indefinite agreement. If there were a general letting at a yearly rent; though payable half-yearly, or quarterly, and though nothing were said about the duration of the term, it is an implied letting from year to year. But if two parties agree that the one shall let, and the other shall hold, so long as both parties please, that is a holding at will." In the later case of Lee v. Smith (4) Parke B. relied upon payment of a quarterly rent as proof of a tenancy from year to year, and Martin B. said his impression was that the party would have succeeded without the receipts (scil., for rent) and that he would have been entitled to refer to the instrument for the purpose of seeing what the terms of the tenancy were ; whereupon Parke B. said (5): "Ido not say that I dissent from that proposition, but here the proof of that fact appeared more strongly without it."

In the many cases at law in which it was decided that a tenant entering or holding under an agreement for a lease became on payment of rent a tenant from year to year, the rent or the render has been annual; and apparently no case has before come for decision in which the rent was not calculated by reference to a year or a part of a year. But, save for these observations of Parke B., no case of an agreement for a term of years has been found in which the character of the rent has been relied upon as determining the duration of the tenancy. At an early stage of the history of

(1) (1811) 4 Taunt. 128; 13 R.R. R.R,, at p. 573; 128 E.R., at p. 278. 570; 128 E.R. 277. (4) (1854) 9 Ex. 662; 156 E.R. 284.

(2) (1811) 4 Taunt., at p. 129; 13 (5) (1854) 9 Ex., at p.666; 156 E.R., R.R., at p. 571; 128 E.R., at p, 277. at p. 285.

H. C.or A. tenancies from year to year a presumption arose in favour of tha

tenure. In his History of English Law, vol. vu., p. 245, Sir W.8 Holdsworth says that the ruling of Holt C.J. that the tenancy could only be terminated at the end of each year "shows that opinio was beginning to lean in favour of construing a tenancy, when no certain term was mentioned, as a tenancy from year to year. the latter part of the eighteenth century this leaning became « pronounced that, on one occasion, Lord Mansfield even went so fai as to say that, 'in the country, leases at will . . . being fou extremely inconvenient exist only notionally ; and were succe by another species of contract which was less inconvenient.'

of course, was an exaggeration. Tenancies at will still exist : the presumption of the existence of a tenancy from year to ye arising from the payment of rent, can always be rebutted. the presumption had undoubtedly come to be very strong in th eighteenth century - so strong that it was held that, though Statute of Frauds had enacted that a parol lease should operate only. a a lease at will, such a parol lease will operate as a lease from yea to year if rent has been paid thereunder." This presumption h continued and still prevails. In Doe d. Martin and Jones v. Watts(1) Grose J. said: '" The plaintiff received rent of the defendant ; and from that moment he admitted that the defendant was a tenam to him of some kind; and no other tenancy appearing here, defendant must be considered as tenant from year to year." In Roe v. Prideaua (2) Lord Ellenborough says: "The receipt of rent evidence to be left to a jury that a tenancy was subsisting duri the period for which that rent was paid; and if no other tenance appear, the presumption is that that tenancy was from year to yeu

he says: "All leases made generally and not for any partic period, are, by construction of law, leases from year to year." is was recognized by Cozens-Hardy J. in Low v. Adams (3): "A general occupation of land was, as long ago as the Year-Book held to be an occupation from year to year." In principle there

(1) (1797) 7 'T.R. 83, at pp. 85, 86; (2) (1808) 10 East 158, at p. 7 101 E.R. 866, at p. 868, 103 E.R. 739, at p. 746. (3) (1901) 2 Ch, 598, at p. 601.

appears to be no reason why the circumstance that the rent paid H.C. or A.

under an agreement for a term of five years is weekly should displace this presumption in favour of the yearly tenancy. The doctrine which justifies reference to the period of the rent in order to ascertain the term no doubt is that the rent is a compensation for the land, and the parties have so understood it. A quarterly payment thus implies a yearly tenancy because it is part of the compensation for a year's holding. When the parties agree for a five years' holding with weekly payments of the compensatory rent, their intention is not that each week's rent shall represent a distinct and therefore terminable holding of a week. The weekly rent is part of the compensation for the entire period. Where the intention of the parties is to hold for a greater duration than a yearly tenancy would give them, and this intention fails because of its want of appropriate expression or of formal demise, the presump- tion or assumption that a general holding is from year to year supplies the term.

Tt should, perhaps, be added that the conclusion which has been thus reached appears to be supported by the views adopted in four of the Australian States in relation to the implication of tenancies from year to year. (See Ex parte Murphy (1); Bloomfield vy. Bloomfield (2); Bank of Victoria v. M'Hutchison (3); Box v. Altfield (4) ; Morison v. Edmiston (5); Beattie v. Fine (6) ; Marshall vy. Coupon Furnishing Co. (7); Styles & Co. v. Richardson (8).)

Tt follows that at law, whatever may be the position in equity, the respondent would be considered a tenant from year to year.

The second answer or statement of opinion of the Supreme Court is set aside, the opinion of this Court being that at common law the defendant was a tenant from year to year.

Order that the case be remitted to the Supreme Court to do what is right in accordance with this opinion. The order for costs in the Supreme Court is discharged, and, in liew thereof, it is ordered

(1) (1856) 2 Legge (N.S.W.) 976. (5) (1907) V.LR. 191; 26 ALT. (2) (1893) 9 N,S.W.W.N. 188, 148, (3) (1881) 7 V.L.R. (L.) 452. (6) (1925) V.L.R, 363; 47 A.L.T. 19, (4) (1886) 12 V.L.R. 574; 8 ALT. (7) (1916) S.R. (Q.) 120, at p. 125, 45. (8) (1915) 17 W.A.L.R, 81,

H.C. or A. that the costs of the special case and order thereon be paid by

« that it was incumbent on the appellant at that stage to succeed,

Isaacs J. The material facts, so far as this appeal is concern are few. The respondent was tenant of the appellant of certai premises in Adelaide under registered lease, for a term commen on 31st March 1922 and expiring on 30th November 1927, at weekly rental of £10 10s. up to 13th November 1924, and, after that, £12. In May 1927 an agreement in writing was entered it for a further lease of five years on the basis of £16 10s. per wee plus rates and taxes. From 1st December 1927 until 17th Novemb 1928 the respondent remained in occupation of the premises, payin rent £16 10s. weekly in advance. In the meantime, disputes hay occurred with reference to the new lease, the respondent went out of possession. This action was brought to recover £16 10s. ; rent for the week from 17th November to 24th November 19 It is plain that unless a tenancy at law existed during that v the claim must fail. The Supreme Court of South Australia th that, having regard to the claim made, the appellant would unless a tenancy from year to year was established, and held there was no evidence to sustain any finding of such a tenancy. I agi

at all, on the footing of a tenancy from year to year.

The reasoning of the Court leading to its conclusion may be thu epitomized: (1) Apart from the payment of rent, there was mere tenancy at will; (2) the rent from payment of which Jaw draws the implication of a tenancy from year to year must what is known as an " annual" rent, in whatsoever instalments it is payable; (3) the rent actually paid was a weekly rent; (4) there was nothing - apart from the rent - which afforded any cle indication of the intention of the parties respecting the tenancy at law. It was contended for the appellant that the second step ws inaccurate, and that the true rule of law is that occupation p payment of any rent whatever raises a prima facie legal implication, subject to rebuttal, that a tenancy from year to year exists. It was also contended for the appellant that the terms of the agreeme for a lease were sufficient on which.to base a conclusion of a ten

from year to year. Both propositions were contested. With the H.C. or A.

first proposition I certainly do not agree. In Landale v. Menzies (1) I cited cases and text-writers from 1778 to 1907 - which I need not now repeat - establishing as a firmly-rooted doctrine that in order to raise the implication in question the rent paid must be what is called an "annual" rent, that is, a rent referable to a year or some aliquot part of it, so as to give it, so to speak, a yearly character. Later authorities confirming this will be mentioned presently. There are to be found some judicial observations referring to tenancies from year to year which employ the word "rent " without the adjective "annual" or its equivalent. But those are always, so far as I have seen, alio intuitu, and in cases where the rent was in fact of a yearly character and " annual" was verbum inauditum. No judicial decision or even dictum has been brought under notice contrary to those included in Landale v. Menzies (2). If we approach the matter from the standpoint of principle, the same conclusion is reached, and very naturally so. The implied tenancy from year to year does not rest on the actual intention of the parties to create such a tenancy. It is "' a conclusion of law" (per Patteson J. in Doe d. Thomson v. Amey (3)). It rests on a presumption that the law makes from their acts, that they have contracted to create a tenancy from year to year. The presumption is the same for all persons, including corporations (Doe d. Pennington v. Taniere (4) ).

In Arden vy. Sullivan (5) Patteson J., for the Court, said: " The defendant, by entering under this agreement and paying rent for a year, must be presumed to have agreed to be tenant from year to year." In Dougal v. McCarthy (6) Lord Esher M.R. calls the presumption an implication of law, citing Lord Mansfield and Butler J. in Right v. Darby (7). In Croft v. William F. Blay Lid. (8) Astbury J. calls the implication "a contract implied from conduct." I should prefer to say "imputed." In the Court of Appeal Warrington L.J. (9) says: - ''On March 25, 1917, the

(1) (1909) 9 C.LR., at pp. 129-130. (5) (1850) 14 Q.B, 832, at p. 839; (2) (1909) 9 C.L.R.'89. 117 E.R. 320, at p. 323. (3) (1840) 12 A. & E,, at p. 480; (6) (1893) 1 Q.B,, at p. 740.

113 ELR., at p. 804, (7) (1786) 1 T.R. 159; 99 E.R. 1029,

_ (4) (1848) 12 Q.B. 998; 116 E.R. (8) (1919) 1 Ch, 277. at p. 289, 1144, (9) (1919) 2 Ch. 343, at p. 349,

H.C. or A. tenant paid and the landlord accepted a quarter's rent, that is

say, one-quarter of the yearly rent stipulated for in the agreem The result of that was that the tenant thereupon became a ti from year to year upon the same terms as expressed in the or agreement so far as such terms are applicable to a tenancy year to year." In the quotation from the judgment of Cp Hardy M.R., which immediately follows, the words are: " Und those circumstances the tenant holding over is deemed to hold wy all the terms" &c. Warrington L.J. says (1): - ' A man into possession at an odd time, he pays rent for the odd tim to the next quarter-day, and thereafter he pays and the landk accepts rent at the regular quarter-days. The Court under circumstances comes to the conclusion, as it is bound to do, #] there is a tenancy from year to year." Duke L.J. (2) refers 1 the term arising by holding over as a term " which arose by cond of the parties." He quotes Preston to the same effect. In Ma v. Joyce (3) the Court had to consider the effect of a clause in letting agreement which provided that the rent was £60 per anmt payable on the usual quarter-days. Of that clause Bailhache J. (4): "The provision for the payment of rent quarterly of its creates a yearly tenancy "; and Sankey J. said (5): ' That claus taken by itself, creates a yearly tenancy." In President and Gove of Magdalen Hospital v. Knotts (6) Lord Selborne says: "Tf any rent had been reserved and received, however small, the le relation of a tenancy from year to year would have been creat That was even though the actual lease was void, and the observati appears to be in line with the decision in Doe d. Pennington v Taniere (7). In my opinion, therefore, unless in view of all the cireumstane the rent paid has a yearly character, the Court cannot presume ' tenancy from year to year, for the payment of rent would repugnant to such a tenancy. The evidentiary facts, that is, the facts constituting the conduct, must no doubt be ascertained the tribunal of fact, whether Judge or jury as the case may be.

(1) (1919) 2 Ch,, at p. at (5) (1920) 1 K.B., at p. 828, (2) (1919) 2 Ch., at p. 360. (6) (1879) 4 App. Cas., 324, at p. (3) (1920) 1 K.B, 824, (7) (1848) 12 TOR. 998; 116

intention of the parties in this domain is, of course, all-important. H. ©. or A

These facts, if disputed, may be whether the alleged tenant held over or retained possession as tenant at all (Jones v. Shears (1); and per Willes J. in London and North-Western Railway Co. v. West (2) ); or if as tenant, on what intended terms (Dougal v. McCarthy (3), Wedd v. Porter (4) and Cole v. Kelly (5), per Bankes LJ. and per Atkin L.J.). But, those facts being ascertained, it is obvious it cannot be a question of fact whether the parties created a tenancy from year to year. The basis of the inquiry is that they did not. But at that point the ultimate question as to the existence of such a tenancy is one for the Court as a matter of Jaw. It may be called a presumption or an implication of law, or it may be a legal imputation of an actual contract. But in effect, where the proper circumstances exist, the law deems the relation of landlord and tenant from year to year to exist. As Patteson J. said in Doe d. Thomson v. Amey (6), "the terms upon which the tenant holds are in truth a conclusion of law from the facts of the case, and the terms ofthe . . . agreement"; and as Willes J. said in West's Case, "a new tenancy in law from year to year " was "created." The circumstances must contain sufficient to raise the presumption and nothing repugnant to it. For instance, as Erle C.J. said in Hunt v. Allgood (7): " Ordinarily speaking, an occupation of premises for more than a year, and payment and acceptance of rent, creates a tenancy from year to year.' The length of time for occupation and payment of rent there together raise a prima facie implication. But if the parties say expressly the tenancy is at the will of the tenant or the lessor, there would be a repugnancy and no tenancy from year to year (Doe d. Warner v. Browne (8) ; Doe d. Bastow v. Cox (9) ). And see as to inconsistency, per Parke B. in Doe d. Dixie v. Davies (10), Mayo v. Joyce (11), and Lowther v. Clifford (12).

(1) (1836) 4 A, & E. 832, at p. 836; (7) (1861) 10 C.B. (N.S.) 253, at p. 111 E.R. 997, at p, 998. 257; 142 E.R. 448, at p. 450.

(2) (1867) L.R. 2 O.P. 553, at p. 555. (8) (1807) 8 East 165 ; 103 E.R. 305.

(3) (1893) 1 Q.B., at p. 742. (9) (1847) 17 LJ. QB. 3: 11 QB.

(5) (1920) 2 K.B. 106, at pp. 126, 132. (10) (1851) 7 Ex. 89, at p. 91; 155 (6) (1840) 12. A. & E., at p.480; 113 E.R. 868, at p. 869. E.R., at pp. 893-894, (11) (1920) 1 K.B. 824, (12) (1927) 1 K.B, 130, at p. 136.

It follows from what I have already said that, if nothing mor appeared, the payment of a weekly rent would not be sufficient t raise the presumption of a tenancy from year to year. In Adams v. Cairns (1) Williams L.J. said: " If there were nothing more thar the reservation of a weekly rent, the inference would be drawn that there was a weekly tenancy." But the matter does not end there, It is important to observe that the Court examines all the relev circumstances which taken as a whole may overcome the pri facie effect of the payment taken alone. That is to say, the act of a rent being a weekly rent or a yearly rent is not conclusive that the tenancy is weekly or from year to year. As to the weekly ren the cases of Bank of Victoria v. M'Hutchison (2) and Box vy Altfield (3) are cases in point, and, in my opinion, are correct. toa yearly rent, the observations of Parke B. in Doe d. Dixie v. Davie (4) are relevant. Smith v. Widlake (5) is an authority on point. The rent of sixpence was paid as yearly rent, but, having regard to its disproportion in relation to the annual value of property, the Court declined to regard it as sufficient to raise presumption. Bramwell L.J. said (6): "the payment of rent is at most only evidence of a tenancy from year to year." Then on the facts he held that the money was not received as rent under such a tenancy, but under a mistaken notion of confirmation of a void lease. |

Once the principle is granted that the Court makes the presumption or implication in law from all the relevant facts evidencing conduct of the parties, and in so doing adheres inexorably to the essentiality of the rent having an annual character, for the plain reason that, unless it is so, it cannot be rent for a lease from yea to year, the matter here seems to present no difficulty on the facts. First of all, it is undeniable that the respondent did not hold over; that is, his occupation after 30th November was not an unauthorize occupation which apart from payment of rent would have mad him a tenant at sufferance and would have referred prima facie the payment of rent to the terms of the expired tenancy. He held as tenant at will, at least until payment of rent, because he held under the terms of the agreement for a new lease. The rent of

(1) (1901) 85 L.T. 10, at p. 11. (4) (1851) 7 Ex. 89; 155 E.R, 868. (2) (1881) 7 V.LLR. (L.) 452. (5) (1877) 3 C.P.D. 10. ; (3) (1886) 12 V.L.R. 574; 8 A.L.T.45, (6) (1877) 3 C.P.D., at p. 15.

itself, which was not paid for a full year, though very nearly so, would, as already stated, have effected no change, because without more the Court would have no evidence on which to base a legal conclusion from conduct that the rent was paid with reference to a yearly holding. But part of the relevant conduct may, in accordance with judicial authority already stated, include entry upon or retention of possession upon the faith of an agreement. (See Doe d. Rigge v. Bell (1) and per Williams J. in Doe d. Thomson v. Amey (2).) Tress v. Savage (3) is an authority for this, and has been followed in Martin v. Smith (4). So in Bank of Victoria v. M Hutchison (5). The agreement for this purpose is regarded not as a binding contract, but as evidence of the mutual understanding and intention of the terms on which the premises were held and the rent was paid, that is, of the conduct of the parties. Looking at the agreement in this case for that purpose, and all the attendant circumstances, I entertain no doubt there was abundant evidence of circumstances without repugnance on which to found the necessary presumption of a tenancy from year to year. That conclusion being a matter of law, I am of opinion it should be drawn, and this the Court, in the words of Warrington L.J. (6), "is bound to do"; and the fourth question, namely, "Is the defendant liable for the rent claimed ?"' should be answered in the aflirmative.

Srarke J. In this case we are dealing with technical aspects of the law rather than with the real rights of the parties. According to the case stated, the defendant for some time prior to 30th November 1927 held certain premises in Rundle Street, Adelaide, under lease from the plaintiff. Some six months before the lease expired, the plaintiff and the defendant agreed in writing upon a further lease for five years "on the basis of £16 10s. per week plus rates and taxes." This agreement was void at law as a lease, but, though void at law, it would in equity be held to operate as an agreement for a lease, and as such to create an equitable tenancy on the terms expressed, provided - and this is the essential condition

(1) (1793) 5 T.R. 471, ab p.472; 101 (3) (1854) 4 E. & B. 36,

E.R. 265, at p. 266. (4) (1874) LR. 9 Ex. 50, at p, 52.

(2) (1840) 12 A. & E,, at p.480; 113 (5) (1881) 7 V.LLR. (L.) 452. ER., at p. 894, (6) (1919) 2 Ch,, at p. 353.

H.C. or A. _that it be found to be an agreement of which a Court of

would decree specific performance (Gray v. Spyer (1); Walsh vy. Lonsdale (2); Manchester Brewery Co. v. Coombs (3)). U the law of South Australia, in all matters in which there is any conflict or variance between the rules of equity and the rules common law with reference to the same matter, the rules of equity prevail (Swpreme Court Act 1878, sec. 6 (x1.); Local Courts Aci 1926, sec. 36). But the equitable doctrine that a person who has an agreement for a lease can be treated as if he had a lease can only be applied if the Court in which an action is brought upon the agreement had jurisdiction to decree specific performance (Foster v. Reeves (4) ). In the present case, the plaintiff sued in the Local Court of Adelaide for the sum of £16 10s., being a week's rent of the premises in Rundle Street, and founded his claim on the agreement, or alternatively on a tenancy from year to year, to be inferred from the agreement, payment and acceptance of rent, and holding over of the premises by the defendant after the expiration - of the lease already mentioned. The Local Court of Adelaide is a Court of limited jurisdiction, and can only decree specific performance of any agreement for the lease of any property where the property does not exceed in value the sum of £2,000. It was admitted that a decree was beyond its jurisdiction in this case, though we were - informed at the Bar that the plaintiff is now seeking or is about to seek specific performance of the agreement in the Supreme Court. In the present proceedings he fell back on his claim for rent as upon a tenancy from year to year. Usually, the question, as we - have seen, does not call for decision, for where specific performance can be had the tenant holds under the agreement as if the lease - had been actually granted, and the implication of a yearly tenancy is unnecessary (cf. Foa on Landlord and Tenant, 6th ed., p. 396). But, owing to the limited jurisdiction of the Local Court of Adelaide _ and the form of the plaintifi's claim, the question in this case is - whether the defendant is at law a tenant from year to year. It is i not a question of fact, but rather an implication of law from the proved facts and circumstances of the case. It would be idle,

(1) (1922) 2 Ch, 22, at pp. 33, 34. (3) (1901) 2 Ch. 608. (2) (1882) 21 Ch. D. 9. (4) (1892) 2 Q.B. 255.

after the exhaustive examination by the Chief Justice and my H.C. or A.

learned brethren of the authorities, to traverse them again. The learned Judges of the Supreme Court of South Australia held that the mode in which the rent was reserved - on the basis of £16 10s. per week - " affords a presumption that the tenancy is of a character corresponding to it" (Foa on Landlord and Tenant, 6th ed., p. 3). But that presumption is not conclusive, and "other parts of the instrument" may rebut it. An agreement to grant "a further five years' lease," coupled with the payment and acceptance of rent, effectively destroys, in my opinion, any implication that the intention of the parties was to create a weekly tenancy, and raises an implication in point of law that the parties, as they could not by agreement lawfully create a term of five years, must have intended to create a yearly tenancy. I therefore agree that the appeal should be allowed.

One other observation is perhaps desirable: the plaintiff and his advisers should consider whether they can enforce specific performance of the agreement for a five years' lease if they take a judgment in the present proceedings on the footing of a tenancy from year to year subsisting at law between the parties. An estoppel by judgment may arise, but I have formed no opinion upon the question, and I express none.

Solicitors for the appellant, Baker, McEwin, Ligertwood & Mill- house. Solicitors for the respondent, Edmunds, Jessop & Ward. H. D. W.