Moore v Dimond [1929] HCA 43

Moore v Dimond [1929] HCA 43 - HCA 1929 case summary — Zoe

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(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

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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.

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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,

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)