Tatham v Huxtable [1950] HCA 56

81 C.L.R.] OF AUSTRALIA.

no application, the result of s. 24 (1) is that the notice to quit H. ©. or A.

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 to & 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