Buttrose J:

This is an appeal from a judgment of the Civil District Court dismissing the plaintiff's claim for one month's rent in lieu of notice.

The premises in question -No. 15C, Claymore Drive - were let by the plaintiff to the defendant on a monthly tenancy commencing on 1 April 1959, at a rent of $300 per month payable in advance.

By letter dated 20 August 1959 the defendant gave notice to the plaintiff of his intention to quit the premises on 15 September 1959. The plaintiff by letter dated 24 August 1959 informed the defendant that the notice to quit was not acceptable as a full calendar month's notice of termination was normally required.

Accordingly on 1 September 1959 the defendant wrote to the plaintiff enclosing a cheque for $190 to cover the period up to 19 September 1959, assuming, no doubt, that this would cover the full calendar month's notice required by the plaintiff.

On 3 September 1959 the plaintiff returned the cheque indicating that the tenancy was a monthly one determinable by one month's notice and advising the defendant that a notice to vacate the premises in question should be written immediately and despatched with a cheque for $300 to cover the month of September 1959.

The defendant, however, did nothing relying apparently on his letters of 20 August and 1 September 1959 and vacated the premises on 8 September 1959.

The short question for decision is as to whether the letter of 20 August 1959 giving notice of the defendant's intention to quit the premises on 15 September 1959 is a good and valid notice to quit. That the defendant subsequently in his letter of 1 September extended the date to 19 September does not, in my view, affect the position.

Putting the question in another way, can the defendant determine his monthly tenancy in the middle of a current month of the tenancy or must it be at the end of it?

It is well established that in a monthly tenancy the period of the notice to quit, in the absence of special agreement, must correspond with the length of the tenancy and must determine at the end of a periodic month from the commencement of the tenancy. If authority is required see Queen's Club Garden Estates Ltd. v. Bignell 39 TLR 496, Precious v. Reedie [1924] 2 KB 149; [1924] All ER Rep 573 and Lemon v. Lardeur [1946] KB 613; [1946] 2 All ER 329.

Here in my opinion the notice to quit dated 20 August 1959, which must, of course, be strictly construed, was clearly invalid. By the wording of his notice the defendant purported to bring the tenancy to an end on 15 September extended later to 19 September 1959. In doing so he was attempting to do something which he had no power to do and although it may well have been that he misunderstood the plaintiff's letters of 24 August and 3 September 1959 and failed to appreciate the position that would not cure the defect because in the words of Lord Greene MR in Hankey v. Clavering [1942] 2 KB 326 at p. 330; [1942] 2 All ER 311, 314 at p. 330: "the document was never capable on its face of producing the necessary legal consequence". It failed to comply with one of the conditions which the law prescribes namely, that where the tenancy is a monthly one it should expire at the end of a month from the date of the commencement of the tenancy.

It helps not at all to say how much I regret having come to this decision in the circumstances of this particular case and while I have every sympathy with the defendant in his predicament arising out of what may be thought to be a mere technicality, the law permits of no other answer.

In view of the decision of the Court of Appeal in Lemon v. Lardeur to which I have referred Simmons v. Crossley [1922] 2 KB 95 on which considerable reliance was placed by the defendant, can no longer be regarded as good law.

The case of Khoo Soo Cheow v. Kam Teik Sean [1912] 1 FMSLR 87 further relied on by the defendant can also no longer, in my view, be regarded as good law in the light of more recent authority.

In