See To Soo Hing v Patty [1950] HCA 24

High Court of Australia McTiernan, Williams, Webb, Fullagar, and Kitto JJ. See To Soo Hing v Patty [1950] HCA 24

ORDER Appeal dismissed with costs. Order of the Full Court varied by deleting 27th September 1949 and inserting in lieu thereof 23rd June 1950. Costs to include reserved costs.

Cur. adv. vult.

June 23 McTiernan J.

The circumstances in which this appeal arises are set out by my brother Williams.

In my opinion this appeal should be dismissed.

The only ground of appeal upon which the appellant relies is that the notice to quit upon which the respondents proceeded was void. The question whether the notice to quit is void cannot be decided apart from the provisions of The Landlord and Tenant Acts 1948 to 1949 Q. relating to the giving of a notice to quit and to its contents. If the present notice to quit satisfies these provisions of the Act, it is good.

Sub-section (3) of s. 41 makes the giving of a notice to quit a condition precedent to the taking of proceedings. In order to satisfy this condition the notice to quit must be given "upon one or more of the prescribed grounds but upon no other ground." The prescribed grounds are in sub-s. (5).

It is clear from the terms of the present notice to quit that the respondents gave a notice to quit upon one or more of such grounds and no other ground. The grounds are stated in the alternative with particulars referable only to the first ground. It cannot be said that because the grounds are stated in the alternative the respondents failed to give notice to quit upon one or more of the prescribed grounds.

The condition precedent to the taking of proceedings enacted by sub-s. (3) of s. 41 was satisfied. Then the question is whether the notice to quit is nevertheless invalid or, in other words, ineffective for the purposes of the proceedings taken by the respondents.