F.C.

LOYNES V.
HANMAN.

a forfeiture clause, section 30A is obviously intended to be
something different. It is intended to give the speediest power
to recover possession. Under section 30A respondent became
a tenant upon and subject to the terms and conditions of his
contract of sale, since there were no prescribed terms.
His tenancy
must be one of the ordinary kinds of tenancy known to the law;
it is not a tenancy for a term of years, neither is it one from year
to year. The agreement to purchase is collateral, and thus
cannot assist the Court in determining the nature of the present
tenancy. An agreement to buy is not a term which relates to
the relationship of landlord and tenant. Re Leeds and Batley
Breweries Ltd. (1). The tenancy then comes down to this, that
it is a tenancy under which the tenant pays £4 2s. 4d. per month
as rent. The Act calls it rent; it speaks of the rent-purchase
system. The tenant agreed to pay £4 2s. 4d. per month as an
amount due monthly. This raised a presumption of a monthly
tenancy. There was nothing in the contract to rebut the
presumption. The respondent was given six weeks notice in fact.
and the notice would have been good if the tenant were (a) a
monthly tenant, or (b) a tenant at will. If it were not the correct
view that the tenancy was purely collateral with the agreement
to purchase, respondent would not in any event be anything more
than a tenant at will, once default had been made in payment of
instalments. Doe d. Hiatt v. Miller (2). Under sec. 30A,
it was necessary that default should have been made before the
Commissioner could take action, but once default had taken place
he was given a certain status. When he acted, having the status
of an ordinary landlord, he did not and need not base his action
on default. The notice to quit which the appellant gave the
respondent made no mention of any default. An ordinary
landlord in the case of any periodic tenancy could give a notice to
quit just as rightly where there had been a default in payment of
rent as where there had been no such default. So could the
Commissioner. They also cited Howard v. Shaw (3), Feez and
Feez v. Carroll (4).

A. D. Graham, for the respondent: The object of the appeal
is to establish the right of the Commissioner to eject holders of
War Service Homes under The Summary Ejectment Act of 1867.
That method of ejectment has the dual advantage of not only

(1) [1920] 2 Ch. 548.

(2) 1833, 5 C. & P. 595.

(3) 1841, 8 M. & W. 118.

(4) 1910, Q.W.N. 3.

being more speedy and less costly than proceedings in the Supreme Court, but also of defeating the claim of the tenant for relief against forfeiture, which a Magistrate has no power to grant. The respondent claims that the sums which he has paid were not rent but instalments of purchase money. The provision in the earlier Act whereby the soldier was made a weekly tenant, has been advisedly repealed, and he is now treated by the Act as a purchaser. The terms of the sections, particularly ss. 32, 33A and 37 are in themselves conclusive that something more than a mere monthly tenancy is contemplated. Even if the monthly payments are rent, that fact is only presumptive evidence of a monthly tenancy, and in the present case is rebutted by the terms of contract. Foa, Landlord and Tenant, pp. 3, 797. The real ground for ejectment proceedings is a default, giving a right of entry, and a Magistrate under such circumstances has no jurisdiction. Foa, 5th Ed., p. 3, Woodfall, 20th Ed., pp. 983-987 Doe d. Cundy v. Sharpley (1), Doe d. Cardigan v. Roe (2), Ex parte Gore (3), Lukin on Justices in Civil Jurisdiction, p. 218; Wilkinson's Queensland Magistrate, 3rd Ed., p. 887, citing Ex parte Keogh, 28th October, 1854.

He was stopped by the Court.

Hart in reply: The cases cited for respondent were all cases in which there was a forfeiture clause. The Commissioner's notice was not based upon a forfeiture. The appellant acted as might a private landlord who desired to recover possession from a tenant where there had been default. Even though there had been default, the landlord need-not base a notice to quit on the default, neither need the Commissioner. He referred to Kemp v. Lester

(4).

The judgment of the Court was read by

LUKIN J. This is an appeal by way of special case from the 'decision of Mr. Dean, a Police Magistrate sitting in Petty Sessions at Brisbane, dismissing a complaint made by the Deputy War Service Homes Commissioner for the State of Queensland, under the provisions of The War Service Homes Acts 1918-1919 (Federal), in which the appellant alleged that the respondent held from the War Service Homes Commissioner by virtue of a monthly tenancy, certain lands and a dwelling house; that the said tenancy was

(1) 1846, 15 M. & W. 558.

(2) 1822, 1 D. & R. 540.

(3) 1870, 9 S.C.R. (N.S.W.) 306.
(4) [1896] 2 Q.B. 162,

F.C.

LOYNES r.

HANMAN.

Lukin J.

N

F.C

LOYNES v.
HANMAN.
Lukin J.

determined by notice to quit and demand of possession; that such land and dwelling-house was then being occupied by the respondent; that the respondent neglected to quit and deliver up possession thereof; and that the War Service Homes Commissioner then had lawful right as against the said respondent to such possession, and prayed to be put into possession thereof, under and by virtue of the provisions of the Summary Ejectment Act.

The War Service Homes Act, 1918-1919, is a Commonwealth Act passed" to make provision for homes for Australian soldiers." The respondent was an Australian soldier, and the Commissioner, under Part IV. of the Act dealing with "sale of homes on rentpurchase system" had entered into a contract for the sale of the land and dwelling in question. No document seems to have been drawn out setting out the terms of the contract of sale, but the terms of such contract are to be gathered from documents, from conduct, and from the terms of the statute. It is sufficient for the present purpose to say that the contract was made under the Act, and the respondent occupied the land and dwelling-house and agreed to pay the purchase money and interest by equal monthly payments of £4 2s. 4d., for a period extending over twenty five years. He failed to make payments regularly, and was in default in regard to three instalments, at least, at the time of the laying of the complaint referred to above.

By section 30A, War Service Homes Act, "the purchaser. . may occupy the dwelling-house and land included in the contract of sale and, in that event, he shall be deemed to be a tenant of the Commissioner upon and subject to the prescribed terms and conditions, and the terms and conditions contained in the contract." 2. "Should the purchaser. . fail to comply with such terms and conditions the Commissioner may exercise (a) the powers conferred upon the Commissioner by this Act or the regulations or the contract of sale. . . (b) any powers, not inconsistent with this Act, which are exercisable under the laws in force in the place in which the dwelling-house is situated by a landlord when a tenant has failed to comply with the terms and conditions of his tenancy."

Section 36 provides: "If at any time any instalment or money payable in respect of any contract of sale under this Act, is unpaid for three

or any part of such instalment

calendar months next after the time appointed for the payment

thereof, then, although no legal demand has been made for
payment, the Commissioner may enter upon and take possession of
the land or land and dwelling-house with respect to which the
contract of sale was entered into
and may-(a) in the case
of a purchaser cancel the contract of sale and, in his discretion,
forfeit the instalments previously paid by the purchaser.

It is to be noted that the section does not, nor does the Act in any way confer any power or jurisdiction on any Court, but only certain powers on the Commissioner, and creates what may he termed a fictional relationship of landlord and tenant between the Commissioner and the soldier, the parties to the contract of sale.

The respondent having made default in payment of at least three instalments, the appellant, claiming to act under the powers conferred by the Act, and particularly by the provisions of 31A supra, gave the respondent "notice to quit and deliver up possession of the house." The respondent refused, whereupon the appellant laid the complaint referred to above.

The appellant has not, under sec. 36, entered into possession, and has not in the exercise of his discretion cancelled the contract of sale.

The Police Magistrate heard and determined the complaint and held that upon the evidence before me a monthly tenancy between the parties or any other tenancy determinable by the notice given in the case within the jurisdiction given to me by the Summary Ejectment Act of 1867 had not been established," and now by this special case asks two questions which we understand to raise the question: Are the provisions of the Act applicable to such a case as that presented to the Court? Or, to put it in another way: Had the Police Magistrate jurisdiction, either with or without necessary amendments of the complaint, to make an order under the provisions of the Summary Ejectment Act?

The full title of The Summary Ejectment Act of 1867 is "an Act for the speedy recovery of the possession of tenements unlawfully held over." By section 2, jurisdiction is conferred in regard to tenements which are held "for any term of years or for any less estate or interest" which "shall have expired by effluxion of time or shall have been determined by notice to quit or demand of possession." And on the proceedings at the hearing before the Police Magistrate the landlord seeking recovery of possession must establish the creation and the expiration or determination in manner aforesaid" of the alleged tenancy.

F.C.

LOYNES .
HANMAN.

Lukin J.

F.C.

LOYNES v.
HANMAN

Lukin J.

Similar jurisdiction was conferred by the Legislature in 1867 on the District Court in almost the same words (see sec. 35 of the District Court Act of 1867), re-enacted in sec. 137 of The District Courts Act of 1891. Other provisions were made in the same year for proceedings in ejectment by a landlord against his tenant, particularly for non-payment of rent-see sec. 130, Distress, Replevin and Ejectment Act of 1867.

The Summary Ejectment Act is very similar in its provisions to and is in effect a re-enactment of the English Statute 1 Geo. IV., c. 87. Similar provisions were contained in the English County Courts Acts.

Similar provisions were made under the Judicature Act Rules, both in England and in Queensland for special indorsement on writs of summons, but by amendment the significant words. "or has become liable to forfeiture for non-payment of rent' have been added to the words "whose term has expired or has been duly determined by notice to quit." See English Order 3, rule 6; Queensland Order 6, rule 7, which addition was evidently deemed necessary in order to include such a case.

In our opinion it is unnecessary to consider the question whether the Summary Ejectment Act should be applied to a tenancy created by statute or whether, if it could, this statutorily created tenancy-determinable in certain events at the option of the landlord was "for any term of years or for any less estate or interest" within the words and meaning of that Act, or whether the tenancy, whatever its nature, has been determined at all. The basis of the appellant's claim is that such tenancy has been determined by way of forfeiture as a consequence of the respondent's default. The question we propose to consider and decide then is-Assuming a creation and a determination of the tenancy, is such a determination one prescribed or contemplated by The Summary Ejectment Act of 1867 ?

The full title to the Act, the wording of the section set out above and a large number of cases on the provisions of this statute and similar provisions in New South Wales and England clearly establish that such a determination does not bring the case within the section, and that the Act is therefore inapplicable. Ex parte Keogh (28th October, 1854); Wilkinson, Australian Magistrate, 542; Wilkinson, Queensland Magistrate, 710; Ex parte Gore (1), Doe d. Cundy v. Sharpley (2), Banks v. Rebbeck (3), which is (3) 1851, 20 L.J., Q.B. 476.

(1) 1870, 9 S.C.R. (N.S. W.) 306.

(2) 1846, 15 M. & W. 558.