Arnold v Mann [1957] HCA 64

462 HIGH COURT (1957.

(HIGH COURT OF AUSTRALIA.]

ARNOLD AND ANOTHER . . = = APPELLANTS ; DEFENDANTS, AND MANN é . . - 4 Z E RESPONDENT. CLAIMANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Landlord and Tenant—* Prescribed premises"'—Lease for term—Holding over—

1957. Weekly tenancy—Notice to quit—Expiry—Purported assignment after expiry—

Eat Ground of notice to quit true in fact—Writ in ejectment against assignees—

pee Receipt of rent after expiry of notice and before assignment—Whether new tenancy [pril 16,17 5

created before assignment—Intention of parties—Inferences to be drawn.

Oct. 3.

pe M., the owner of a certain shop and dwelling commenced proceedings in the Ree Supreme Court of New South Wales to recover possession of the premises ity from A. and W., who defended their possession upon the grounds (a) that K.

the predecessor in title of M., who acquired the premises in September 1952, had by deed leased the premises for a term of three years from 16th May 1949 to one T. with a proviso that if T. should be permitted to hold over he should be deemed a weekly tenant, that T. had held over and had by deed dated 24th October 1952 assigned his weekly tenancy to the defendant and (b) that K. had by conduct after the date of the assignment accepted the defendants as tenants. On 17th June 1952 K. had given T. a notice to quit the said premises expiring on 18th July 1952 upon the ground that T. was guilty of a breach of a covenant in the said deed of lease against the carrying out of structural alterations to such premises. After the expiry of such notice to quit no steps were taken by K. to eject T. from the said premises, rent eo nomine was accepted from T. up to the date of the assignment to the defendants and there were protracted negotiations by correspondence between the respective solici- tors of K. and T. concerning the proposed assignment by T. of what was described as his "present weekly tenancy" of the said premises to the defendants. At the trial of the action the jury found in answer to the only question left to them that at the date of the service of the notice to quit T. was guilty of the breach of the covenant therein charged. The trial judge declined to leave to the jury the further question whether after the expiry of