Dever v Lawson [1950] HCA 58; (1950) 81 CLR 631 (21 December 1950)

HIGH COURT OF AUSTRALIA

DEVER v. LAWSON [1950] HCA 58; (1950) 81 CLR 631

Agriculture

High Court of Australia
McTiernan(1), Webb(1) and Kitto(1) JJ.

CATCHWORDS

Agriculture - Agricultural holding - Lease - Statutory provision for twelve months' notice to quit - Share-farming agreement - Terminable on one month's notice - Notice to quit in terms of agreement - Validity - Agricultural Holdings Act 1941 (N.S.W.) (No. 55 of 1941), s. 24 (1) (2).

HEARING

Sydney, 1950, December 20, 21. 21:12:1950
APPEAL from the Supreme Court of New South Wales.

DECISION

December 21.
THE COURT delivered the following written judgment:-
The respondent sued the appellant in an action of ejectment in the Supreme was in possession of the farm under a share-farming agreement into which he had entered with the respondent and which provided that it should continue in force until termination by one month's notice in writing given by either of the parties to the other. The respondent gave to the appellant a notice in writing to quit and deliver up possession of the farm on a date which was more than one month after the giving of the notice; and as the appellant continued in possession after that date the respondent brought the action. (at p635)

2. Particulars of claim were delivered with the writ, and they alleged that the share-farming agreement was duly determined by the notice already mentioned. The appellant filed particulars of defence in which he denied the due determination of the agreement, setting up several grounds of which the only one relied upon in this appeal was that the provisions of s. 24 (1) of the Agricultural Holdings Act, 1941 (N.S.W.) had not been complied with. The respondent in her particulars in reply asserted that those provisions were not applicable. A summons to strike out the appearance and to empower the respondent to enter judgment in the action was dismissed in chambers, but the Full Court of the Supreme Court allowed an appeal, struck out the appearance and gave the respondent leave to enter judgment. From this decision the appellant appealed to this Court. (at p635)

3. Section 4 of the Agricultural Holdings Act, 1941, defines "holding" in terms which apply to the dairy farm in question. It also defines "contract of tenancy" as meaning a letting of or agreement for letting land for a term of years, or for lives, or for lives and years, or from year to year, and as including a letting of land under a tenancy at will; and it defines "tenant" as meaning the holder of land under a contract of tenancy. (at p636)

4. Section 24 (1), so far as material, provides that: "Notwithstanding any provision in a contract of tenancy or in any other Act to the contrary, a notice to quit a holding shall be invalid if it purports to terminate the tenancy before the expiration of twelve months from the end of the then current year of tenancy or where the date of creation of a tenancy is unknown to the person giving the notice, before the expiration of twelve months from the date of the notice". Section 24 (2) provides that: "This section shall not apply to . . . (b) any notice given by a tenant to a sub-tenant . . .". (at p636)

5. Section 24 does not apply in terms to the case of a sharefarming agreement which is so framed as not to confer upon the share-farmer a right to exclusive possession of the land. Such an agreement confers only an irrevocable licence and does not create a tenancy: Bellinger v. Hughes (1911) 11 SR (NSW) 419; 28 WN 88 ; see also Hindmarsh v. Quinn [1914] HCA 27; (1914) 17 CLR 622 . But the appellant relies upon s. 5 of the Act as making the provisions of s. 24 (1) applicable to this case, while at the same time he denies that the same section makes s. 24 (2) (b) applicable. (at p636)

6. Section 5 (1) provides that the Act shall (except where otherwise expressly provided) apply to and in respect of share-farming agreements and the parties to any such agreement in like manner as it applies to contracts of tenancy and the parties to any such contract. Section 5 (2) defines "share-farming agreement", and provides that a person for the time being entitled to the rents and profits of any land is referred to in the section as the "owner", and that the other party to a share-farming agreement is referred to in the section as the "share-farmer". Section 5 (3) provides that: "In the application of this Act to and in respect of a share-farming agreement and the parties thereto - (a) a reference to a contract of tenancy shall be construed as a reference to a share-farming agreement; (b) a reference to a tenancy shall be construed as a reference to the use and occupation of land by a share-farmer; (c) a reference to a landlord shall be construed as a reference to an owner who is a party to a share-farming agreement; (d) a reference to a tenant shall be construed as a reference to a share-farmer; (e) a reference to a holding shall be construed as a reference to land which a share-farmer is authorised to use and occupy pursuant to a sharefarming agreement". (at p636)

7. The appeal was argued on the footing that the share-farming agreement made between the parties was a share-farming agreement within the meaning of s. 5, and it follows that, if s. 24 (2) (b) has no application, the result of s. 24 (1) is that the notice to quit upon which the respondent relies is invalid. The only question debated before the Court was whether s. 24 (2)(b) is inapplicable to the case. The appellant's contention was that, by virtue of s. 5 (3) (d), the word "tenant" in s. 24 (2) (b) must be read, in the case of a share-farming agreement, as "share-farmer", and that "sub-tenant" is either meaningless in such a case or means a sub-share-farmer. On either alternative he would be entitled to succeed, because the respondent is not a share-farmer. (at p637)

8. This contention treats s. 5 (3) as providing for a mechanical substitution of the word "share-farmer" for "tenant" throughout the Act when its provisions come to be applied to a share-farming agreement and the parties thereto. But the opening words of s. 5 (3) make plain that the function of the sub-section is to assist in carrying out the provision contained in s. 5 (1) for the application of the Act to share-farming agreements and the parties thereto. The Act is to apply to them "in like manner" as it applies to contracts of tenancy and the parties to any such contract. Accordingly the process with which s. 5 (3) deals is the process of adapting to the case of a share-farming agreement, not so much the words of the Act, as the references which its words make to certain persons or things. Section 24 (2) (b) contains the words "tenant" and "sub-tenant", but the reference which these words make is to the landlord and the tenant who are the parties to the tenancy in respect of which a notice to quit is given. It describes the landlord as a tenant and the tenant as a sub-tenant, because it is directed to the case where the person who is the landlord in relation to the tenancy in question holds the land as tenant of a third person. In expanded form, s. 24 (2) (b) provides that the section shall not apply to any notice given by a landlord to a tenant where the landlord is himself the tenant of a head-landlord. What s. 5 (3) requires, in the application of the Act to the parties to a sharefarming agreement, is that the party who grants the licence shall be treated as the subject of any reference which the Act contains to a landlord, and that the party who is the share-farmer shall be treated as the subject of any reference which the Act contains to a tenant. Since, in s. 24 (2) (b), the words "tenant" and "subto a tenant. Since, in s. 24 (2) (b). the words "tenant" and "sub tenant" refer to the parties to a contract of tenancy who are respectively landlord and tenant in relation to one another, s. 5 (3) requires these words to be construed, in the application of the Act to a share-farming agreement, as referring to the owner and the share-farmer respectively. (at p638)

9. On this construction, s. 24 (2) (b) precludes the application of s. 24 (1) in the case of a share-farming agreement, where the notice is given by a person who is himself a tenant of a third party to a share-farmer with whom he has made a share-farming agreement. The respondent in this case was such a person and the appellant was such a share-farmer. The only person to whom the word "sub-tenant" in s. 24 (2) (b) can refer in applying the Act to the agreement in this case and the parties to it is the share-farmer; and by reading the word "sub-tenant" as referring to him, the direction in s. 5 (1) to apply the Act to this agreement and the parties to it, and the rule of construction laid down by s. 5 (3) for the purpose of carrying out that direction, are satisfied. To adopt the contention that s. 24 (2) (b) does not apply to this case would be to disregard the peremptory requirement of s. 5 (1) that the Act must be applied to the case of a share-farming agreement unless otherwise expressly provided. (at p638)

10. The notice to quit given by the respondent to the appellant was therefore not invalidated by s. 24 (1), and the appellant has no defence to the action of ejectment. (at p638)

11. For these reasons the Court has dismissed the appeal with costs. (at p638)

ORDER

Appeal dismissed with costs: