Rob Badcock Nominees P/L and Austfurn P/L v Madsen P/L No. 4223 Judgment No. SCGRG 93/1134 Number of Pages 11 Landlord and Tenant

[1993] SASC 4223

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Landlord and tenant - Registered lease - commercial premises - termination of lease - appointment of provincial liquidator - termination by agreement between parties without concurrence of liquidator - claim by appellants that agreement reached for new lease - new memorandum of lease in registrable form prepared by, not executed by, second appellant - proceedings before Commercial Tribunal which held that initial lease terminated by agreement and there is no subsequent lease only monthly tenancy - appeal against findings and orders of Tribunal - Tribunal correct in deciding that initial lease was terminated - no implied term of oral agreement that initial lease to continue until new lease executed, no part performance of oral agreement - Tribunal correct in conclusion that monthly tenancy existed - appeal dismissed. Masters and Anor v Cameron (1954) 91 CLR 353; Bradbrook and Craft: Commercial Tenancy Law in Australia para.2.14 and Corporations Laws. 474 referred to.

HRNG ADELAIDE, 5, 15 July 1993 #DATE 19:10:1993
Counsel for appellant:     Mr M S Blumberg
Solicitors for appellant:    Cowell Clarke
Counsel for respondent:     Mr C J Kourakis
Solicitors for respondent: Morcombe Townsend

ORDER
Appeal dismissed.

JUDGE1 MULLIGHAN J This is an appeal and cross-appeal pursuant to s.20 of the Commercial Tribunal Act 1982 against various decisions and orders of the Commercial Tribunal regarding lease arrangements between the parties with respect to furniture showroom and warehouse premises at 394 Main North Road, Blair Athol, being the whole of the land comprised in Certificate of Title Register Book Volume 4332 Folio 687 ("the premises"). 2. In order to appreciate the issues raised on this appeal, it is necessary to set out, in some detail, relevant features of the history of those lease arrangements. 3. The respondent is the registered proprietor of the premises. It appears that prior to the 1st January 1993 the first appellant was the trustee of the Rob Badcock Family Trust which carried on the business as a retailer of furniture. After that date the second appellant acted in that capacity. The first appellant leased the premises from the respondent for a period of six years commencing on 1st April 1989. The terms of that lease are embodied in a memorandum of lease which was executed by the first appellant and the respondent and duly stamped and registered on the abovementioned Certificate of Title. It is unnecessary, for present purposes, to set out the terms and conditions of that lease. There were many disputes between those parties over the years as to various matters relating to the premises and the lease. Matters came to a head on 11th November 1992. The respondent's solicitors wrote to the first appellant asserting that there had been a long history of late payment by the first appellant of rates and charges which it was obliged to pay and that it had consistently under-paid the rent due over the previous eighteen months. The respondent claimed $6,326.38 by way of arrears of rent, rates, taxes and interest and gave notice that it would not allow that situation, presumably the arrears, to continue indefinitely. 4. On 23rd February 1993 a provisional liquidator was appointed to the first appellant pursuant to s.472 of The Corporations Law with the consequence that as from that time all property of the first appellant vested in the liquidator: s.474. On 6th March 1993 there was a meeting between Mr Badcock, who had control of both appellants and Mr Madsen, who controls the respondent, at the home of Mr Madsen. On the appellants' case an agreement between the parties to this appeal was reached on this occasion to the effect that the existing lease between the first appellant and the respondent be terminated forthwith and that there be a new lease between the second appellant and the respondent. Indeed, it is the appellants' case that there was an oral agreement concluded on this day with respect to the lease of the premises and all that remained was for that agreement to be later embodied in a memorandum of lease to be executed by the second appellant and the respondent. The terms and conditions of this lease were to be substantially the same as in the lease said to have been terminated, although the rent was to increase from $32,000 per annum to $38,000 per annum. There were some other variations. The contentions as to the effect of what occurred on this day are disputed by the respondent. On 8th March 1993 the respondent's solicitors again wrote to the first appellant. They referred to their letter of 11th November 1992 and asserted that the first appellant had failed to pay the amount claimed in that letter and had fallen further behind in rent and other costs. The total claim at that time had increased to $8,800.83. This letter concluded with the following:- "We advise that pursuant to part 13 clause 13 of the lease, the lease is terminated as of today the 8th day of March 1993." 5. A copy of this letter was sent to the liquidator. A memorandum of lease between the second appellant and the respondent, in registrable form, was prepared on behalf of the respondent and sent to the second appellant which it received on 10th March 1993. On 11th March 1993 Mr Madsen prepared a letter to be sent to Mr Badcock in the following terms:-
    "Mr R. Badcock c/- 394 Main Nth Rd. Blair Athol SA 5085
    Dear Sir, RE: Premises - 394 Main North Road. We refer to the
    recent termination of lease no. 6802576 to ROB BADCOCK NOMINEES
    PTY. LTD ('the old lease') and the new lease dated 8th March
    1993 between MADSEN PTY. LTD. ACN 007 794 103 and AUSTFURN ACN
    008 046 464 of the premises at 394 Main North Rd. Blair Athol
    (hereafter refered (sic) to as 'the new lease'). In accordance
    with the calculation enclosed the amount of $9595.10 is due by
    Rob Badcock Nominees Pty. Ltd. as at 8 March 1993. We will
    forgive this debt of $9595.10 upon completeion (sic) of the
    following; 1. Receipt of payment of our legal expenses in
    relation to the 'old lease' within 7 days of request, and 2.
    Execution by Robert John Badcock of the deed of guarantee of
    'the new lease', and 3. Austfurn Pty. Ltd. ACN 008 046 464
    does not default its obligations with regard to 'the new lease'.
    Yours faithfully, MADSEN PTY. LTD. (signed) N.B. Madsen
    Director". 6. However, that letter was not sent by him. On 12th March 1993 a cheque for rent for one month was paid to the respondent calculated on the basis of the new annual rent. On 16th March 1993 Mr Badcock informed Mr Madsen that the new memorandum of lease would not be executed as he required some minor changes and it contained some errors. From then until 7th May 1993 Mr Madsen made many attempts to have the new memorandum of lease executed by the second appellant but without success. Mr Badcock's explanation in his evidence before the Commercial Tribunal for not having the memorandum of lease executed was that he was negotiating with the provisional liquidator and was concerned about the liquidator becoming involved in the negotiations with respect to the lease. Consequently, he did not return the memorandum of lease duly executed to Mr Madsen or, presumably, resolve any matters of disagreement. 7. On 15th April 1993 Mr Madsen was approached by a prospective purchaser of the property. On 7th May 1993 he sent a letter by facsimile transmission to Mr Badcock in the following terms:-
    "Mr Rob Badcock, Austfurn Pty. Ltd., 394 Main North Road,
    BLAIR ATHOL, S.A., 5085 Dear Sir, Re: Lease of Premises - 394
    Main North Road. Take Notice that unless the lease of the
    abovementioned premises is returned to this office, duly
    executed by the parties concerned before 12 noon on Tuesday,
    11th May, 1993, together with all monies owing, the offer to
    lease will be withdrawn, and possession of the premises will be
    taken on Wednesday, 12th May, 1993. All agreements between us
    will be terminated. Upon your request, the Lease was quickly
    prepared and forwarded to you in early March on the basis this
    would be promptly returned. We believe our offer to you was
    generous and has assisted you at a time when you are defending
    liquidated actions. Despite your numerous broken promise(sic),
    we finally agreed to extend your deadline to sign the lease to
    Wednesday, 5th May and again extended this to 7th May, 1993. It
    is clear to us that you do not intend to sign the lease nor make
    payment of the rent monies due, 1st April and 1st May, 1993.
    This is your final notice. We will take possession of the
    premises on Wednesday, 12th May, 1993. Yours faithfully,
    (signed) N.B. MADSEN DIRECTOR MADSEN PTY. LTD." 8. Mr Badcock contacted Mr Madsen on that day after receiving the facsimile and arranged to see him on 10th May 1993. However, on 9th May 1993 the respondent executed an agreement, in unconditional terms, for sale and purchase of the premises with settlement due on 15th June 1993. In the meantime the provisional liquidator was removed on 6th May 1993. Mr Badcock attempted to contact Mr Madsen on occasions on 10th May 1993 but without success. On the next day the respondent's solicitors wrote to the second appellant. In that letter they referred to the new memorandum of lease having been sent to the second appellant, together with an account, on 8th March 1993, and not having been returned, and that since then only one monthly instalment of rent had been paid and that despite many requests the second appellant had not discharged its obligations. Reference was made to the letter of 7th May 1993. The letter continued:-
    "We are instructed that you have failed to comply with this
    requirement and therefore confirm the notice, that the offer to
    lease is withdrawn. We enclose a notice to quit within one
    month of the date of this letter. Pursuant to the monthly
    tenancy of Austform (sic) we hereby advise you that if all
    outstanding amounts (two months rent plus cost of lease
    $6,827.33) are not paid within 14 days of the date of this
    correspondence our clients intend instituting legal proceedings
    to recover this debt and any consequential damages arising out
    of your breach. We trust that you will now accept your
    obligations and immediately rectify this matter." 9. The notice to quit was in the following terms:- "To: AUSTFORM (sic) PTY LTD ACN 008 046 464 394 Main North Road, Blair Athol 5085 I the undersigned as solicitor for Madsen Pty Ltd ACN 007 794 103 the lessor of the premises situated at 394 Main North Road, Blair Athol HEREBY give you notice as tenant thereof to quit and deliver up to the lessor the aforesaid premises on or before the 12th day of June 1993." 10. The notice is dated 11th May 1993 and was signed by the solicitor for the respondent. 11. This letter and notice provoked a reaction from Mr Badcock. The rent for two months was paid on 12th May 1993 and he wrote a long letter to Mr Madsen the following day setting out his version of the history of the matter. It is unnecessary to set out the text of that letter. The effect of it is that Mr Badcock was asserting that there was an agreement for the lease of the premises on 6th March 1993, that he had not executed the memorandum of lease that he had received on 10th March 1993 because alterations had to be made, that the arrears under the previous lease were remitted as part of that agreement and that he had not been able to contact Mr Madsen since 7th May 1993 and consequently had been frustrated in his attempts to resolve the matter. 12. On 19th May 1993 the respondent instituted proceedings against both appellants in the Commercial Tribunal pursuant to the provisions of the Landlord and Tenant Act 1936 seeking an order that the appropriate appellant pay $10,116.10, being all arrears under the original lease and the cost of preparation of the new lease, that they vacate the premises on or before 12th June 1993 and pay the costs of enforcing the terms of the initial lease and of its termination. In those proceedings the respondent asserted that the second appellant occupied the premises pursuant to a monthly tenancy commencing on 8th March 1993 following the termination of the lease on that day between the respondent and the first appellant. It claimed that the monthly tenancy was agreed on 6th March 1993. 13. The appellants opposed the orders sought. They denied that there was a monthly tenancy and asserted that there was an agreement to lease made on that date in respect of which they sought specific performance or, in the alternative, a declaration that the initial lease was not validly terminated or, in the further alternative, relief from forfeiture in relation to the alleged agreement to lease on the initial lease. An urgent hearing was arranged on 4th June 1993. The Tribunal gave its decision on that day and the Chairman gave reasons ex tempore. The decision was restricted to the respective claims relating to the lease or tenancy of the premises. With the agreement of the parties, the monetary claim was to be left to another day. The Tribunal found that the initial lease was terminated by agreement on 8th March 1993 and that it was agreed between the parties that a new tenancy commenced on 8th March 1993. The Chairman went on to say:-
    "The said tenancy has not been reduced to writing and the
    main evidence of such an arrangement is the amount of rent
    payable and the fact that such rental was payable monthly.
    Three payments of rental were made. One in respect of the month
    of March and a further payment of two months rental in respect
    of the months of April and May 1993. By notice in writing dated
    11 May 1993 the applicant's solicitors gave notice to the
    respondent to quit and deliver up to the applicant the relevant
    premises on or before 12 June 1993. The Tribunal finds that the
    only arrangement between the applicant and the respondent from 8
    March 1993 was a verbal tenancy commencing 8 March 1993, and
    that rental in respect to such tenancy was payable monthly.
    Accordingly, the Tribunal finds that the tenancy between the
    parties was a monthly tenancy and was terminable by one month's
    notice in writing to be given by the applicant to the
    respondent. In fact, the applicant did not give to the
    respondent one month's notice in writing. The notice to quit
    was dated 11 May 1993 and was to expire on 12 June 1993, whereas
    on the facts the expiry date should have been not before 8 July
    1993. In the circumstances the Tribunal finds that the said
    tenancy has not been properly terminated." 14. In consequence of this decision the respondent caused a fresh notice to quit to be prepared and served on the second appellant which required the premises to be vacated by 8th July 1993. Service was effected on 7th June 1993. On that day, after service of that notice to quit, Mr Badcock delivered to the respondent's solicitors the memorandum of lease which had been sent to the second appellant on 10th March 1993 with various alterations, presumably to reflect his view of what its terms should be. It is suggested that this memorandum was duly executed by the second appellant but the copy produced at the hearing of the appeal is not executed. A cheque for rent for one month accompanied the memorandum, but was not banked by the respondent. The memorandum was treated by the respondent as a counter-offer to the offer by the second appellant of 10th March 1993 and was not accepted. 15. On 16th June 1993 the respondent applied to the Commercial Tribunal for an order, consequent to the orders of 4th June 1993, that the initial lease be removed from the Certificate of Title. That order was made on 22nd June 1993, the appellants not attending. On 25th June 1993 there was a further hearing before the Commercial Tribunal at the instance of the appellants. They intimated that they would appeal against the orders of the Commercial Tribunal and sought an order suspending the operation of the order on 22nd June 1993 until the determination of that appeal. Such an order was made. 16. The appeal is against each of the findings made by the Commercial Tribunal on 4th June 1993 and against the orders made on 22nd June 1993. There are ten grounds of appeal which complain that the Tribunal erred in law and in fact in the respects which I summarise as follows:-
    1. in finding that the initial lease was terminated by
    agreement on 8th March 1993;
    2. in not finding that it was an implied term of that agreement
    that until the proposed new lease was entered into between the
    second appellant and the respondent, the initial lease would
    remain in full force and effect;
    3. in not finding that it was agreed between the second
    appellant and the respondent that the proposed new lease was to
    be upon the following terms: to commence on 8th March 1993, for
    a term of four years, at an annual rental commencing at $38,000
    inclusive of outgoings, the rent to be reviewed annually in
    accordance with increases in the Consumer Price Index and that a
    memorandum of lease embodying such terms would be executed;
    4. in not finding that the agreement had been partly performed
    by reason of the second appellant being given possession of the
    premises by the respondent, the payment of rent by the second
    appellant and the acceptance of rent by the respondent and the
    preparation of the memorandum of lease by the respondent's
    solicitors intending to embody the terms of the second lease;
    5. in not granting specific performance of the terms of the
    proposed lease;
    6. in finding that the second appellant and the respondent were
    not ad idem in relation to the agreement to enter into a second
    lease;
    7. in finding that even if the second appellant and the
    respondent were not ad idem that a monthly tenancy only had been
    entered into;
    8. in finding that even if the second appellant and the
    respondent were not ad idem the tenancy which did exist was able
    to be terminated upon notice of one month from the respondent to
    the second appellant;
    9. in ordering that the registration of the initial lease be
    cancelled;
    10. in ordering the Registrar-General to cancel the entry in
    the Register Book relating to the initial lease. 17. The respondent, by notice of alternative contentions, contended that the decision of the Commercial Tribunal should be affirmed on the alternative grounds which I summarise as follows:-
    1. the parties had on 6th March 1993 agreed on the terms
    upon which a lease might be granted but the respondent had not
    agreed to be immediately bound by those terms and had reserved
    the right unconditionally to execute or not to execute the
    lease;
    2. alternatively, the respondent had agreed to be bound only on
    condition that it was satisfied of the financial position of the
    second appellant and that its performance of the proposed lease
    was personally guaranteed;
    3. if an unconditional agreement was made on 6th March 1993, it
    included a term that the second appellant would promptly execute
    a lease and its failure to do so was a fundamental breach
    repudiating the agreement and justifying termination of the
    agreement by the respondent;
    4. in the further alternative, if there was an agreement it was
    not in writing and was not signed by the respondent. 18. The second appellant relied upon the agreement (by its counterclaim) to resist the finding of no more than a periodic tenancy at law. Equity would not make good the lack of writing given by the second appellants' equivocation in executing the memorandum of lease despite the request of the respondent to do so. Before turning to the various grounds of appeal and the alternative contentions, it is necessary to mention a difficulty which arises in the resolution of various issues on appeal. The Tribunal heard evidence from Mr Madsen and Mr Badcock. There were significant differences in their evidence as to important matters. The Tribunal gave only brief reasons and did not express any findings as to the credibility of either of those witnesses. Of course, it is not possible to make such findings on appeal as I have not had the benefit of seeing or hearing the witnesses. It may be inferred from conclusions expressed by the Tribunal that certain findings as to credit must have been made and, to some extent, adverse to Mr Badcock. I am only prepared to draw that inference where it is not possible to otherwise explain a finding of the Tribunal and I approach the resolution of the various issues on that basis. 19. The first ground of appeal is based upon a provisional liquidator having been appointed to the first appellant, the lessee of the premises pursuant to the initial lease. It is said that the lease could not be terminated by agreement between the first appellant and the respondent or otherwise without the agreement of the liquidator. S.474 of the Corporations Law provides that a provisional liquidator having been appointed, "shall take into his or her custody or under his or her control all the property to which the company is or appears to be entitled, and, if there is no liquidator, all the property of the company shall be in the custody of the Court". The relevant obligation of a provisional liquidator is succinctly described in McPherson: The Law of Company Liquidation, 3rd Ed. at p.102:-

    "The principal duty of a provisional liquidator is to take
    into his custody and control all the property of the company
    with a view to protecting and preserving it for the ultimate
    benefit of those who will share in the proceeds of its
    realization if a winding-up order is made. His primary function
    therefore is to maintain the status quo pending determination of
the proceedings to wind up ...". 20. There can be no doubt that usually such a lease could not be terminated merely by the agreement of the parties where one of them is a company to which a provisional liquidator has been appointed, without the concurrence of the liquidator. However, without objection, an affidavit of the accountant employed by the provisional liquidator, who undertook the work, setting out his knowledge of, and attitude to, relevant events was admitted on the hearing of the appeal. He was informed of the purported termination of the initial lease by the respondent's solicitors on 9th March 1993. So it may be accepted that the respondent was not attempting to go behind the back of the liquidator. The accountant was informed that the respondent was attempting to mitigate its loss by terminating the lease and forgiving the accounts outstanding by the first appellant under that lease upon the second appellant entering into a new lease. The accountant was concerned that the termination of the lease did remove an asset from the first appellant but concluded that such a detriment was offset by the forgiving of the monies outstanding. In his affidavit he uses the expression "I did not attempt to block the termination of the lease" and then expresses his reasons for not doing so, all of which indicate that he made a commercial judgment which he considered to be in the best interests of those he was obliged to protect. The true interpretation of what happened is, in my view, that he concurred in the termination of the lease and considered that the arrangements associated with it were acceptable. Support for that view is to be found in his lack of objection to the purported termination. Having considered the evidence of Mr Madsen and Mr Badcock, I think the Tribunal was justified in reaching the conclusion that the discussions between them resulted in an agreement to bring the initial lease to an end. Mr Badcock wanted that to happen because of financial difficulties which had led to the appointment of the provisional liquidator. He was anxious to be in the position to have new leasing arrangements which would isolate the premises from the liquidator. Mr Madsen was willing to have the respondent enter into such arrangements provided it was legally possible to do so. He consulted his solicitors and then proposed to terminate the lease by the letter of 8th March 1993. He took the view that because of the appointment of the provisional liquidator, he had to take the formal steps to bring the lease to an end. In my view, the Tribunal was correct in concluding that the lease was terminated. There was an agreement to do so on 6th March 1993 which was carried into effect on 8th March 1993. I accept Mr Kourakis' submission that, strictly speaking, the agreement reached on 6th March 1993 was to terminate the lease if legally possible. After taking legal advice, Mr Madsen proceeded to take the necessary steps to bring the lease to an end. It was not suggested that the respondent had not complied with the requirements to enforce re-entry or forfeiture provided by s.10 of the Landlord and Tenant Act, 1936. 21. Mr Kourakis submitted that even if the conclusion of the Tribunal that the initial lease was terminated by agreement was wrong, it had been terminated by the respondent pursuant to cl.13 of the lease by reason of the default of the first appellant as specified in the letter from the respondent's solicitors of 11th November 1992, which default continued, and the letter from the respondent's solicitor of 8th March 1993. There is merit in that argument, but the evidence does establish termination of the initial lease by agreement and I think it is likely that Mr Madsen adopted the procedure under cl.13 in order to avoid any complication which could exist by reason of the appointment of the provisional liquidator. 22. The evidence does not establish that there was an implied term in the agreement between the parties reached on 6th March 1993 in discussion between Mr Madsen and Mr Badcock, that until the proposed new lease was entered into between the second appellant and the respondent, the initial lease would remain in full force and effect as asserted in the second ground of appeal. The agreement went no further than the termination of the initial lease which was found by the Tribunal. In my view, the effect of the discussions between Mr Madsen and Mr Badcock on 6th March 1993, apart from the termination of the initial lease, was that their respective companies, for whom they spoke, reached an agreement that the respondent would lease the premises to the second appellant on the terms and conditions which they discussed subject, as might be expected, to the execution of a memorandum of lease in agreed terms and conditions and the provisions of a personal guarantee from Mr Badcock. Those agreed terms and conditions were either expressly stated or accepted by both parties from the factual background of the previous arrangements and dealings between the respective parties, including the terms and conditions of the initial lease and the obligations of the first appellant under that lease and Mr Badcock, who was the guarantor of the first appellant's performance of its obligations under the lease. By 6th March 1993 the amount owing under that lease had increased to almost $9,600. I have mentioned the letter prepared by Mr Madsen on 11th March 1993 but not sent by him. That letter cannot, for that reason, be regarded as part of the negotiations, or the transaction, between the second appellant and the respondent, but it is some evidence of the understanding of Mr Madsen at that time. He referred to the new lease. No doubt he was referring to the memorandum of lease sent by the respondent's solicitors to the second appellant and received on 10th March 1993. It is clear that a new lease was to be in accordance with the standard terms and conditions published by the Building Owners and Managers Association of Australia Ltd., as had been the case with the initial lease, that the rent was to be $38,000 per year inclusive of all outgoings and the term was to be four years with a right to a further term of not less than three years and the second appellant's obligations under the new lease were to be guaranteed by Mr Badcock. Also, it was agreed that the debt of about $9,600 was to be forgiven upon the new lease being executed and it was understood that the new lease and the new guarantee would be executed, stamped and registered promptly. 23. It must be inferred from the brief reasons for judgment of the Tribunal that the assertion by the appellants that there had been an agreement by the parties to lease the premises, which had been partly performed by the second appellant in paying instalments of rent, was rejected because the Tribunal held that the second appellant occupied the premises pursuant to a monthly tenancy. In my view, that conclusion was justified by the evidence. Mr Madsen had a long history of default by the first appellant under the initial lease. It is to be expected that he would require a guarantee in writing from Mr Badcock. He would require the new memorandum of lease to be executed. The true interpretation of what occurred is that the respondent, through Mr Madsen, did agree to lease the premises to the second appellant upon terms and conditions which Mr Madsen thought had been agreed. He required and obtained legal advice and that all legal formalities be completed. The significance of what had occurred is, in my view, the last of the three possibilities discussed in Masters and Anor. v. Cameron (1954) 91 CLR 353 at p 360:-
    "Where parties who have been in negotiation reach agreement
    upon terms of a contractual nature and also agree that the
    matter of their negotiation shall be dealt with by a formal
    contract, the case may belong to any of three classes. It may
    be one in which the parties have reached finality in arranging
    all the terms of their bargain and intend to be immediately
    bound to the performance of those terms, but at the same time
    propose to have the terms restated in a form which will be
    fuller or more precise but not different in effect. Or,
    secondly, it may be a case in which the parties have completely
    agreed upon all the terms of their bargain and intend no
    departure from or addition to that which their agreed terms
    express or imply, but nevertheless have made performance of one
    or more of the terms conditional upon the execution of a formal
    document. Or, thirdly, the case may be one in which the
    intention of the parties is not to make a concluded bargain at
    all, unless and until they execute a formal contract." 24. Given the history of unsatisfactory dealing with Mr Badcock in relation to the premises, it is likely that Mr Madsen did not intend to make a concluded agreement until the execution of the new memorandum of lease and the agreement. The failure to execute such documents by the second appellant and Mr Badcock and the wish of Mr Badcock to make alterations is consistent with such an intention on his part. He did attempt to explain these matters by mere delay on his part because he was involved with the liquidator. It would seem that the Tribunal rejected such an unlikely explanation. Also, he sought to explain the late payment of two instalments of rent for April and May as being due to difficulties in bank authorisation, what I regard as another unlikely explanation despite a document which he produced as some sort of support for his story. After all, he was supposed to be a businessman of considerable experience and it might be thought that if he did regard his company as having binding leasing arrangements with respect to the premises, he could have written a cheque or at least responded to Mr Madsen's attempts to contact him. Another explanation is that Mr Madsen was waiting to see what happened with the liquidator and creditors before he was prepared to have the memorandum of lease executed and, more significantly perhaps, execute the personal guarantee. 25. In my view, grounds 3 and 4 must fail. There was no basis for relief by way of specific performance in favour of the second appellant and ground 5 must also fail. 26. I turn to ground 7. The second appellant continued in occupation of the premises. There was never any discussion between Mr Madsen and Mr Badcock after 6th May 1993 from which any agreement with respect to the lease of the premises could be inferred. No memorandum of lease or any other document as to the leasing of the premises was executed. Having concluded that the initial lease had been terminated and apparently rejecting that the second appellant occupied the premises pursuant to an agreement, the Tribunal accepted that there was a monthly tenancy. In my view, such a conclusion was inevitable. The type of periodic tenancy is to be determined by the intention of the parties and is one of fact. If nothing more appears than that, say a monthly payment of rent, the inference is that the period of tenancy is a monthly tenancy: see Bradbrook and Craft: Commercial Tenancy Law in Australia, para.2.14. The evidence establishes that the rent was to be paid each month. The second appellant made a payment in March 1993 and later, when in default, attempted to make two monthly payments. The evidence supports the finding of a monthly tenancy commencing on 8th March 1993 as accepted by the Tribunal. Consequently, such tenancy could be terminated upon notice of one month. Grounds 7 and 8 fail. 27. It follows that the orders made by the Tribunal that the registration of the initial lease be cancelled and that the Registrar-General do cancel the entry on the Certificate of Title of that lease were properly made and grounds 9 and 10 must also fail. 28. It may be seen that in the course of these reasons I have considered the alternative contentions 1 and 2 of the respondent. It is unnecessary to consider contentions 3 and 4. 29. The appeal is dismissed.