Perpetual Trustee Co Ltd v Morley [1968] HCA 83

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Perpetual Trustee Co Ltd v Morley [1968] HCA 83

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 11 Barwick C.J.

Mr. Bell has argued this appeal, on behalf of the appellant, very ably. But, though the use by the draftsman of what I consider are unnecessary and inapt words, namely, "expressed to be" in s. 22 of the Agricultural Holdings Act, 1941 N.S.W., has raised considerable difficulties in my mind as to the proper application of that section, I have come to the clear conclusion that the intention of the legislature sufficiently expressed in ss. 22 and 23 is that tenancies in the sense of legal interests in land, for fixed terms of less than two years, shall be treated as tenancies for two years so as to fall within the operation of s. 23. To so conclude is to treat ss. 22 and 23 as complementary. But they can only be regarded as complementary if s. 23 is confined in its operation to those contracts of tenancy (as defined) which have resulted in the creation of tenancies for fixed terms of years. A combination of the definitions of "holding" and "tenant" with that of "contract of tenancy" in their application to s. 22 can achieve this, though it does result to my mind in the virtual elision from the section of the words "expressed to be", words, incidentally, which in my opinion do not in that context necessarily connote futurity.

Consequently, I agree with the construction placed upon s. 22 by the majority of the Supreme Court [2] and with the conclusion as to the notice to quit dated 18th November 1963, to which they came. I would dismiss the appeal.

1. (1968) 70 S.R. (N.S.W.) 161; 88 W.N. (Pt 2) 48. McTiernan J.

I agree with the construction placed by the majority of the Court of Appeal of the Supreme Court of New South Wales on s. 22 of the Agricultural Holdings Act, 1941 N.S.W., and as to the relation between this section and s. 23.