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.
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. Accord- ingly 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 share- farming 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
à 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.
[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.
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AGLC
Tatham v Huxtable [1950] HCA 56
Case
[1950] HCA 56
Decision Date
CaseChat Overview and Summary
The case of Tatham v Huxtable concerned a dispute over the validity of a notice to quit served by a respondent on an appellant, who was a share-farmer. The central issue was the interpretation of section 24(1) and 24(2)(b) of a relevant Act, in conjunction with section 5(3)(d), which provided for the application of the Act to share-farming agreements. The appellant argued that the notice was invalid because the respondent was not a share-farmer, and therefore the term "sub-tenant" in section 24(2)(b) did not apply to the appellant.
The court was required to determine whether section 5(3)(d) mandated a mechanical substitution of the word "share-farmer" for "tenant" throughout the Act when applied to share-farming agreements, or if it required a more nuanced adaptation of the Act's references to persons and things. Specifically, the court had to ascertain how section 24(2)(b), which refers to a landlord and a sub-tenant, should be construed in the context of a share-farming agreement, where the parties are a licensor and a share-farmer.
The court reasoned that section 5(3) was designed to adapt the Act's provisions to share-farming agreements by ensuring that references to landlords and tenants in the Act referred to the owner and the share-farmer respectively. In section 24(2)(b), the terms "tenant" and "sub-tenant" referred to the parties to a tenancy agreement in their landlord-tenant relationship. Therefore, when applying the Act to a share-farming agreement, these terms were to be construed as referring to the owner and the share-farmer. Under this interpretation, section 24(2)(b) precluded the application of section 24(1) in cases where the notice to quit was given by a person who was himself a tenant of a third party to a share-farmer.
Consequently, the court held that the notice to quit given by the respondent to the appellant was not invalidated by section 24(1). The appeal was dismissed, and the appellant was ordered to pay the costs.