Byrne v Fox and Dublin Board of Assistance

• Jurisdiction: Ireland
• Judgment Date: 17 December 1938
• Date: 17 December 1938
• Court: Supreme Court

Supreme Court.

Byrne v. Fox and Dublin Board of Assistance.

ANNE BYRNE

Plaintiff

and

BRIDGET FOXand the DUBLIN BOARD OF ASSISTANCE

Defendants.

Landlord and Tenant - Lease - Construction - Covenant not to carry on certain businesses nor any "noisome or offensive trade or business" - Poor Law Dispensary - Whether carrying on, a breach of covenant - Provision for additional rent on breach of covenant - Limited proviso for forfeiture - Whether lessor's remedy limited to obtaining additional rent - Quia timetaction - Temporary nature of proposed user - Whether injunction ought to be granted or damages awarded - Ejusdem generis rule - Practice - Costs - Motion for interlocutory injunction - Hearing treated as trial of action - Urgency of application - Issue of public importance - Special Certificate for Costs - Courts of Justice Act, 1936 (No. 48 of 1936), sect. 12.

Motion for an interlocutory injunction.

The action was brought by the plaintiff, Anne Byrne, to restrain the defendants, Bridget Fox and the Dublin Board of Assistance, and each of them, their respective servants and agents, from carrying on or permitting to be carried on in the house and premises, No. 37 Hamilton Street, in the City of Dublin, the business of a Dispensary and a Relieving Officer's Office, or other similar offensive trade or business, in breach of a covenant on the lessee's part contained in the lease under which the premises were held.

By lease, dated the 24th September, 1896, the Irish Civil Service Building Society, as mortgagees, and Susannah Hamilton, as tenant for life subject to the mortgage, demised to Cornelius Frawley a plot of ground fronting upon Hamilton Street in the City of Dublin for a term of 500 years, at a yearly rent of £5 5s. 0d. The plaintiff and the defendant Bridget Fox were entitled to the lessor's and lessee's interest, respectively, in the said lease and by an agreement, dated 28th September, 1937, and made between the defendant Bridget Fox and the defendants the Dublin Board of Assistance, the Board agreed to take over the ground floor of No. 37 Hamilton Street for 3 years at an annual rent of £80, with an option to apply for a further term of 3 years. The premises demised by this agreement included also the right of egress and regress for both the front and back entrances to the house and were required by the Board for the purpose of establishing a Poor Law Dispensary for the benefit of the sick poor.

The relevant provisions in the lease were as follows:—"And shall at his or their own expense within one year from the date hereof erect upon the said parcel of ground hereby demised upon a site and according to plans and elevations to be first approved of in writing by the said Society and by the said Susannah Hamilton her successors and heirs or assigns or his or their agent two good and substantial private dwelling houses with proper and sufficient out-buildings and conveniences thereto, to be similar and in unison with those erected adjoining in Hamilton Street, and expend in the erection of each of the said dwelling houses the sum of £225 each at the least, and shall in the construction of all the said erections and buildings make use of good, sound and well seasoned timber of a proper scantling and strength and good sound bricks, slate, or tiles, mortar and other necessary materials . . . and shall not be at liberty to sell either wholesale or retail any spirituous or malt liquors on the said premises during the said term or carry on any noisome or offensive trade or business therein and shall not during the said term build or erect or cause or permit to be built or erected on the said parcel of land any buildings or erections except such as are hereinbefore covenanted to be erected without the previous licence in writing of the said Society, their successors in title and assigns, or his or their agents for the time being, and shall not at any time during the said term without such previous licence as aforesaid convert or use the said parcel of land or any part thereof for such purposes as last aforesaid . . . . Provided always, and these presents are upon this expressed condition that, if and whenever any part of the said yearly rent hereby reserved shall be in arrear for twenty-eight days next after any of the days on which the same ought to be paid as aforesaid, whether the same shall have been legally demanded, it shall be lawful for the Society, their successors in title or assigns at any time thereafter into and upon the said demised premises or any part thereof in the name of the whole to re-enter and thereupon the said term of five hundred years shall absolutely determine: Provided also that if the lessee, his executors, administrators or assigns shall build or erect or cause or permit to be built or erected erections except such as hereinbefore are covenanted to be erected without such previous licence as aforesaid, or if he or they shall without such previous licence as aforesaid convert or sell or permit to be sold either wholesale or retail any spirituous or malt liquors on the said premises or carry on or permit any noisome or offensive trade or business thereon or if there shall be a breach or non-observance or non-performance of any of these covenants hereinbefore contained then and in any of the said cases the said premises shall be subject to an additional rent of ten pounds per year to be payable during the time of the such breach of said covenant or any of them and to commence from the time the lessee shall be required by the Society or the said Susannah Hamilton or their successors in title to correct or remove such breach or non-performance and to be recoverable in the same manner as the hereinbefore reserved rent." The lease also contained the usual covenants for keeping in repair and insuring the premises.

By consent of the parties the hearing of the motion was treated as the trial of the action.

The further facts appear sufficiently for the purpose of this report from the judgment of Johnston J.

The defendants appealed to the Supreme Court (1), the grounds of appeal, as set out in the notice of appeal, being that the trial Judge misdirected himself both in the law and on the facts in holding:—

(a) that the proposed user of the premises No. 37 Hamilton Street, Dublin, as a dispensary would constitute a noisome or offensive trade or business;

(b) that the establishment of the proposed dispensary was or would be a breach of the covenants contained in the lease of the said premises, and, in particular, of the covenant against user of the premises for a noisome or offensive trade or business;

(c) that there was evidence of a proposed user of the said premises as a Relieving Officer's office;

(d) that the proposed user of the said premises as a Relieving Officer's office would constitute a noisome or offensive business;

(e) that the establishment of the proposed Relieving Officer's office was or would be a breach of any of the covenants contained in the said lease, and, in particular, of the

covenant against user of the premises for a noisome or offensive trade or business;

(f) that, if any breach of covenant is involved by the proposed user of the said premises by the defendants, there was any remedy other than the penal rent provided by the said lease;

(g) that the action was not premature and that the plaintiff was entitled to an injunction in respect of an apprehended breach of covenant in the future, which might never take place;

(h) that the evidence was sufficient to justify the order appealed from.

The lessee under a lease made in 1896 of a plot of ground in H. Street in the City of Dublin, covenanted inter alia (1), to erect two good and substantial private dwelling houses in accordance with certain specifications, to be similar and in unison with other adjoining dwelling houses, (2), not to sell any spirituous or malt liquors on the premises nor to carry on "any noisome or offensive trade or business" therein nor to build or erect or permit to be built or erected any other building, nor to convert the premises nor any part thereof for any of the purposes aforesaid. The lease contained a proviso for re-entry only in the case of arrears of rent; but, in addition, it was also provided that in the event of any other breach of covenant the premises would be subject to an additional rent of £10 per annum to be payable during the time of such breach and to commence from the time that the lessee would be required to remedy same and to be recoverable in the same manner as the rent reserved by the lease. The defendant, F., who was entitled to the lessee's interest, had sub-let portion of the premises to the Dublin Board of Assistance, who were the other defendants, and who had announced their intention of establishing therein a Poor Law Dispensary. The plaintiff, in whom was vested the lessor's interest, and a number of residents in the neighbourhood objected. Plaintiff brought an action to restrain the defendants from the said user of the premises, and, on a motion for an interlocutory injunction pending the hearing of the action, evidence was given that H. Street was a quiet, residential street and that the proposed user of the premises would seriously diminish the value of the property and would be annoying and offensive to the residents. There was a conflict of medical evidence as to the danger of contagious or infectious disease, but it was not denied on behalf of the defendants that numbers of persons suffering from infectious diseases would be likely to resort to the proposed dispensary.

Held by the Supreme Court (affirming Johnston J. who had granted the injunction):—

(1), that the carrying on of a Poor Law Dispensary was a business;

(2), that, having regard to the locality, the circumstances under which the lease was granted, and the evidence before the Court, the proposed user of the premises constituted a breach of the covenant against carrying...