Bayne v Love [1909] HCA 2; (1909) 7 CLR 748 (4 March 1909)

HIGH COURT OF AUSTRALIA

Bayne Defendant, Appellant; and Love Complainant, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

4 March 1909

Griffith C.J., Barton, O'Connor and Isaacs JJ.

Gregory, for the appellant.

Davis, for the respondent,

Griffith C.J.

There is nothing in any of the points which have been raised. Three points were formally taken, viz.[1] that the appellant was not a tenant of the respondent;[2] that no proper notice to quit had been given, and[3] that the appellant was really in the position of a purchaser in possession. The third point is abandoned by counsel for the appellant, and there is no evidence to support it. As to the first point Cussen J. thought the evidence was ample to support a finding that the relation of landlord and tenant existed between the respondent and the appellant. The appellant became tenant of the owners for the time being—it does not matter who they were. Subsequently the land was transferred to the respondent, and the appellant, on being asked for rent by the respondent, went to him and asked for certain favours which were granted to her. That is abundant evidence that the appellant became tenant to the respondent.

As to the notice to quit there are two answers. First, before the magistrates counsel for the appellant said that he did not raise any objection on that ground, and, secondly, upon the evidence, a full month's notice to quit was given. Whether in the case of a monthly tenancy a month's notice terminating at the end of a month of the tenancy is necessary or not it is not necessary to decide. The appeal fails on all grounds.

Barton J.

I concur.

O'Connor J.

I concur.

Isaacs J.

I concur.

Appeal dismissed with costs.

Solicitor, for the appellant, W. E. Douglas.

Solicitors, for the respondent, Ellison & Hewison.

[1] 33 Ch. D., 16.

[2] 30 L.R. Ir., 412.

[3] (1894) 1 Q.B., 164.