Bradshaw v McMullan

• Jurisdiction: Ireland
• Judgment Date: 24 April 1918
• Date: 24 April 1918
• Court: King's Bench Division (Ireland)

Bradshaw

and

M'mullan.

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1918.

Landlord and tenant — Rates — Poor-rate — Agreement to deduct from rent — Estoppel — Res judicata — Local Government (Ireland) Act, 1898, sect. 52, sub-s. 2.

By an agreement in writing dated 1st September, 1908, M., a tenant, agreed to take from B., a landlord, a large portion of a business house in the city of Dublin for a term of thirty-one years from 1st January, 1909, at the yearly rent of £240, “including all rates and taxes at present existing or assessed on said premises.” For some years subsequently to the date of the said agreement, the tenant's claim to credit for poor rates, as well as for other rates, had never been disputed. In certain mortgage proceedings between the parties in the Chancery Division, and in proceedings for rent in the King's Bench Division, the landlord's obligation was admitted, but subsequently the landlord B. refused to allow the tenant credit for the poor rates, part of the entire rates of the premises, relying on sect. 52, sub-s. 2, of the Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37).

In an action for rent in which the tenant pleaded that he was entitled to credit for the poor rates paid by him,

Held (per Gibson and Kenny JJ., Madden J. diss.), that the tenant was entitled to credit for the poor rate paid by him.

(Per Gibson J.), that there is nothing in sect. 52 of the Local Government (Ireland) Act, 1898, to preclude the landlord at the time a tenancy is created from undertaking liability for poor rate; also that the landlord was estopped.

(Per Kenny J.), that the Court was bound by the decisions of the Court of Appeal in Bryans v. Callaghan, 42 I. L. T. 97, and Allen v. Carroll, [1911] 2 I. R. 190.

(Per Madden J. diss.), that sect. 52, sub-s. 2, of the Local Government (Ireland) Act, 1898, made the contract between the parties void.

In the present action the plaintiff sued for £140, being seven months' rent of the premises. The defendant paid into Court a sum less than this by £27 6s. 7d., the whole of the rates paid by him during the period in respect of the premises.

The following statement of the facts is taken from the judgment of Gibson J.:—

The material facts may be shortly stated. Under a proposal, dated September 1st, 1908, accepted by the plaintiff, the defendant agreed to take a lease for thirty-one years from 1st January, 1909, of portion of 30 Bachelors' Walk, Dublin, at the yearly rent of £240, “including all rates and taxes as at present existing or assessed on said premises, but we agree to pay five-sevenths of all future or increased taxation caused by the alterations or improvements hereinafter stipulated.” The rent was to be paid quarterly, but it was afterwards agreed that it should be paid monthly at £20 per month. The tenant was to spend £400 on certain improvements, which were duly made. The house was at this time valued in two portions, one at £30, the other at £60, including the greater part of the defendant's section. On revaluation subsequently the defendant's portion was valued at £110, and the defendant was rated as occupier and paid rates accordingly, for which he was allowed credit until recently. An arrear of £500 having become due, the defendant by deed, dated 17th September, 1913, mortgaged property of his at Elm Park to secure such arrear with interest, the deed reciting that the tenant had paid certain rates and taxes which he was not bound to pay under his lease. The defendant as mortgagor covenanted to pay the said £500 with interest, less any money paid by him in respect of rates and taxes which he was not bound to pay under his lease. The deed, therefore, was for valuable consideration, not only as to the security, but as to interest on the arrears. At this date the tenant's claim to credit for poor rates as well as for other rates had never been disputed, and had been always allowed in his rent payments. A suit was afterwards instituted in respect of this mortgage, in which an account had to be taken. The landlord's obligation was admitted save as to the five-sevenths, which the plaintiff insisted should be borne under the contract by the defendant. It is to be noted that if the plaintiff's present contention was well founded, namely, that the defendant was obliged to pay the entire poor rates, the special contract as to five-sevenths had no substantive effect whatever. The Court decided that the tenant was not affected by the contract, as the increase in the valuation had not been caused by the improvements, but was accounted for by general causes. The account was accordingly taken and settled on that footing, credit for all rates being allowed. An action for rent subsequently due was at the time of the suit pending, in which a fiinal judgment motion had been brought. The application was adjourned till the decision in the mortgage suit. After the judgment of the Master of the Rolls, a consent on 15th February, 1915, in the rent action was made a rule of Court on the basis that full credit for poor rates should be allowed, and defendant was to pay certain costs.

Dickie K.C. (with him Jellett K.C. and James Henry), for the defendants:—

In sect. 52, sub-s. 2, of the Local Government (Ireland) Act, 1898, “contract” only refers to contracts then existing, not to contracts entered into after the Act. The only motive for the section was to adjust rents. Haslett v. Sharman (1) shows that only existing contracts are referred to. In sect. 71 of the Poor Law Act, 1838, future contract is expressly referred to. If it was the policy of the Local Government Act to make the ratepayers see that their rates were properly expended, why was not this policy applied to the ordinary rates of the city of Dublin? “Shall” does not refer to futurity in modern statutes (Craies on Statutes, 1911 ed., p. 165). The object of sect. 52 was to deal with the case of the £4 tenant and nothing more: Kerrison v. Cole (2); Mouys v. Leake (3); Payne v. Mayor of Brecon (4).

The contract prohibited is only a contract for deduction: Ludlow v. Pike (5); Williams v. North's Navigation Collieries (6); Hewlett v. Allen (7); Bryans v. Callaghan (8); Allen v. Carroll (9); Haslett v. Sharman (1); Pickering v. The Ilfracombe Railway Company (10). The plaintiff is estopped by contract from raising this point: Wilson v. M'Intosh (11). A man may by conduct waive the provisions of an Act of Parliament intended for his benefit: Cairncross v. Lorimer (12). A verbal consent has been held sufficient for sect. 2 of the Land Act of 1881. Here the plaintiff allowed the defendant to expend money.

The net point has been decided by the Master of the Rolls in the proceedings in his Court. This is a good estoppel if pleadable: Jewsbury v. Mummery (1); Newington v. Levy (2). The very point was raised in the plaintiff's affidavit before the Master of the Rolls. See Great North-West Central Railway Company v. Charlebois (3). Here the legality of the act was a matter in dispute, so there is a clear estoppel: Joint Committee of the River Ribble v. Croxton Urban District Council (4). See also O. Comitti v. Maher (5); Hewlett v. Allen (6); Williams v. North's Navigation Collieries (7); Re Wilson (8); Smith v. Baker (9). Bateman v. Faber (10) and M'Naghten Men v. Paterson (11) were cases of status, but even in such cases waiver has been allowed. See also Humphries v. Humphries (12); Irish Land Commission v. Ryan (13). “Deduction” under the Poor Law Act is a well-known term, and the Court is bound to give it a technical interpretation: Hill v. East and West India Dock Company (14), cited with approval in Tozer v. Viola (15). These premises were premises let in apartments, and if so there was nothing illegal in Mrs. Bradshaw agreeing to pay rates.

W. G. Gibson K.C. and Mark B. Cooper, for the plaintiff:—

The contract is free from objection if it does not extend to poor rate. We submit that poor rate is not included, because the language used is inappropriate to a tax such as poor rate, which is a personal one and not a charge on the premises: Lally v. Concannon (16); Palmers v. Power (17); Scovell v. Gardiner (18); Gloster v. Murphy (19); and also because the parties must be deemed to have contracted with knowledge of the provisions of sect. 52 of

the Local Government (Ireland) Act, 1898. If the contract is construed as including poor rate, it violates sect. 52 of the Local Government (Ireland) Act, 1898, because it involves deduction of the poor rate from the rent: Barcroft v. Welland (1); and its effect is to shift the obligation in respect of poor rate from the occupier to the landlord: Haslett v. Sharman (2). The contract dees not state that there is to be deduction, but deduction is what was plainly contemplated, and must take place in practice under a contract of the kind, and the Court will not permit the statutory prohibition to be evaded: Tuff v. Guild of Drapers of the City of London (3); Ludlow v. Pike (4); both decisions on analogous provisions of the Tithe Acts.

Allen v. Carroll (5) and Bryans v. Callaghan (6), relied on by the other side, cannot be treated as overruling the considered judgment of this Court in Haslett v. Sharman (2), which was not cited in either of those cases. They were franchise cases, and we submit that they were not decided upon sect. 52 of the Local Government (Ireland) Act, 1898.

The Court of Registry Appeal has regard to questions of fact, such as actual possession, occupation, or use, per FitzGibbon L.J.: Roulston v. Kerlin (7); and see comment of Palles C. B. on M'Daid v. Galbraith (8) in Earl of Cork v. Cork County Council (9). Bennett v. Cairns (10), as to whether there had been a bona fide payment of rates by the occupier, and Roulston v. Kerlin (7), as to whether there was a bona fide occupation, illustrate the kind of...