Slee v Warke [1949] HCA 57

H.Onorek.

1952. SH

BoNnNINGTON & Co. Pry. Lop. v. Lyncu.

Dixon C.J. MeTiernan J. Williams J. Webb J. Kitto J.

HIGH COURT (1952.

of the premises at the expiration of the period specified in the notice, but nothing in this section shall operate so as to determine any tenancy before the date on which it would have terminated if this section had not been enacted". Of corresponding provisions it was said by this Court in Anderson v. Bowles (1) that a body of judicial decision, references to which were given, existed for the view that after a valid notice to quit had been given in accordance with the section and had expired the tenancy was brought to an end by virtue of the section but nevertheless the lessee remained protected against dispossession by the lessor whether by peaceable re-entry or otherwise unless and until an order for possession is made by a court of competent jurisdiction under the statutory provisions and the time for the execution of the order expires, the tenant being liable to pay the rent and observe the other obligations of the tenancy, so far as applicable, in the meantime.

Further support for this view is given by Andrews v. Hogan (2) and it may be taken to be established.

It follows that in cases within s. 62, until a lessee had ceased, as a result of s. 67, to fulfil that description in a strict sense, he could not be exposed to an order for the recovery of possession and therefore could not require the protection of s. 4 (4) of the Landlord and Tenant (War Service) Amendment Act.

The foregoing shows that unless the word "lessee" in s. 4 (4) has an extended sense the provision can have no sensible operation. Its purpose is manifest, namely to protect servicemen of the last war against ejectment and a strict meaning of the word "lessee " would cause the failure of that purpose. The words " lessor " and " lessee " are defined by s. 4 (2) to mean the parties to a lease or their successors in title and this language does not necessarily connote the continued existence of the lease as a present title to possession. Although great caution must be exercised in giving to such an expression as lessee an extended meaning, it is evident that unless it does possess an extended meaning the real intention of the legislature will be defeated. The meaning which the context and subject matter suggests is a person holding premises in conse- quence of a lease or tenancy which has been brought to an end so that, apart from s. 4 (4), he is liable to be dispossessed or exposed to proceedings having that object. That meaning is supported by two provisions of the Act. In the definition of " premises" in s. 4 (2) premises are excluded if certain conditions are fulfilled one of which is that that they should have been leased for holiday purposes only for a specified term that has expired. If the expiry