Bayne v Love - [1909] HCA 2

COMPLAINANT, Landlord and tenant-Evidence of ftenancy-Payment of t-Notice - to quit-

Monthly tenancy-Length of notice. MELBOURNE,

A. had been in possession of land as a monthly tenant, but there was no evidence as to who was then the owner. Subsequently B. became the owner, and A. continued in possession, and, on rent being demanded from her, promised B. to pay it and asked for time.

Held, that there was evidence of a tenaney between A. and B. One month before one of the monthly periods a notice in writing was given by B. to A. demanding payment of rent then alleged to be due, and, in default of payment, that A. should immediately quit, and stating that, in

7 CLR 749

the event of A. paying the sum demanded, the tenancy would be determined H. C. as from the end of the particular monthly period. A. paid no rent.

Held, that the tenancy was properly determined. Judgment of the Supreme Court of Victoria (Cussen J.) affirmed.

APPEAL from the Supreme Court of Victoria.

A complaint was heard at the Court of Petty Sessions, St. Kilda, on 26th June 1908, whereby the complainant, John Jeremiah Love, sought to recover from the defendant, Grace Bayne, possession of certain premises.

The justices having ordered a warrant of possession to issue within 30 days, the defendant obtained an order nisi to review that order on the grounds :- That there was no evidence of any tenancy between the complainant and the defendant. (2) That there was no evidence that the tenancy (if any) had ended or been duly determined by legal notice to quit, or otherwise. (3) That the justices were wrong in deciding that it was necessary to produce a written contract for the purchase of the land in order to give the defendant a title thereto.

In the affidavits used on the hearing of the order to review before Cussen J. the following matters were deposed to :-The defendant first went into possession of the premises as monthly sub-tenant of one A. R. Stevenson, and after the determination of his tenancy on 4th June 1907, she remained in possession, but paid no rent from that time onward. There was no distinct evidence as to who was the owner of the land until, on 31st January 1908, the defendant became registered proprietor. In April 1908 the defendant, after rent had been demanded from her, called on the complainant, promised to pay the rent then owing, and asked the complainant for time. Certain correspond- ence put in evidence showed that negotiations for the purchase of the property by the defendant were going on from April 1907 until March 1908. On the 4th May 1908 a notice addressed to the defendant and Lilian Bayne, and signed by the complainant, was served on the defendant, and, SO far as is material, was as follows: Please take notice that I, being the owner and regis- tered proprietor of the house and premises at Esplanade…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bayne v Love

Details

AGLC: Bayne v Love [1909] HCA 2
Case: [1909] HCA 2
Decision Date: 4 March 1909

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria, which had affirmed an order made by the Court of Petty Sessions, St. Kilda. The complainant, John Jeremiah Love, sought possession of premises from the defendant, Grace Bayne. The defendant had initially occupied the premises as a monthly sub-tenant, and after her sub-lessor's tenancy ended, she remained in possession without paying rent. Subsequently, the complainant became the registered proprietor of the land. The defendant then promised to pay outstanding rent and requested time, indicating a potential landlord-tenant relationship with the complainant.

The legal issues before the court were whether there was sufficient evidence to establish a tenancy between the complainant and the defendant, and whether the tenancy, if it existed, had been duly determined by a valid notice to quit. The defendant also raised a point regarding the necessity of producing a written contract for the purchase of the land to establish title, though this was later abandoned.

The High Court, affirming the decision of Cussen J., found that there was ample evidence to support the existence of a landlord-tenant relationship. The defendant's continued possession after the complainant became the owner, coupled with her promise to pay rent and request for time, constituted sufficient evidence of a tenancy. Regarding the notice to quit, the court noted that the defendant's counsel had not objected to its validity before the magistrates. Furthermore, the court found that a notice served on 4th May 1908, which demanded payment of rent and stated that the tenancy would be determined as from 4th June next if the rent was paid, constituted a valid determination of the monthly tenancy.

The appeal was dismissed, with the High Court holding that all grounds of appeal failed. The court found no error in the lower courts' decisions regarding the existence of a tenancy or the validity of the notice to quit.

Orders