Caulfield v Kenny

• Jurisdiction: Ireland
• Judgment Date: 04 April 1935
• Date: 04 April 1935
• Court: Supreme Court (Irish Free State)

High Court.

Supreme Court.

Caulfield v. Kenny

JANE CAULFIELD

Applicant

and

JULIA KENNY, Respondent (1)

Landlord and tenant - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 2, sub-sect. 1 (b); sect. 17, sub-sect. 2 -"Standard rent" - Determination of - Application to Circuit Court - Jurisdiction - No dispute between landlord and tenant as to rent - Premises held under lease for a term of years - Lessee not in occupation of the premises - Portion of premises used for business purposes - Increase of Rent and Mortgage Interest (Restrictions) Rules, 1923, r. 8.

Appeal from the Circuit Court.

The applicant, Jane Caulfield, served notice, dated the 8th day of June, 1933, that she intended to apply to the

Circuit Court No. 2, Cork City and County, at the sittings to be held at the Court House, Cork, on the 22nd day of June, 1933, pursuant to the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, "for an order within sect. 2, sub-sect. 1 (b), of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, determining the standard rent of the dwellinghouse, No. 11 Princes Street, in the said City of Cork and said County, of which dwellinghouse the applicant is the tenant and the respondent is the landlord, and for an order providing for the costs of this application."

This notice was amended by the Circuit Court Judge (Judge O'Connor) on the hearing of the application by adding the words "shop and premises" after the word"dwellinghouse"; the amendment being applied for by counsel for the applicant and counsel for the respondent not objecting.

The facts have been summarised in the headnote and are fully stated in the judgment of the Chief Justiceinfra.

Judge O'Connor, having stated the facts, referred to the decision of the Supreme Court in Foley v. Galvin(1), and said that the Judges of the Supreme Court were unanimously of opinion that the benefits of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, were confined to tenants in actual possession and occupation of the dwellinghouses to which the Act applied. The fundamental principle of the Rent Restriction Acts was to protect a tenant who was residing in a house, and a tenant to be entitled to the protection of the Act must be in personal occupation or actual possession of the premises in respect of which he sought protection. Therefore the applicant in this case was not entitled to the benefit of the Act and the application must be refused with costs.

From this decision the applicant appealed to the High Court on the following grounds:—

1. That the learned Circuit Court Judge misdirected himself and failed to direct himself in law in holding that the applicant was not a tenant within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Acts.

2. That the learned Circuit Court Judge misdirected himself and failed to direct himself in law in holding that the dwellinghouse, shop and premises, No. 11 Princes Street, were not in the occupation of the tenant within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Acts.

3. That the learned Circuit Court Judge misdirected himself in fact on the following grounds:—

(a) In holding that the tenant should be in actual occupation of the premises as a residence for herself.

(b) In holding that the applicant was not entitled to have the standard rent of said premises fixed by the Court under the said Acts.

(c) In not holding that the tenant was in the actual possession or occupation of part of the said premises and of the remainder thereof by her tenants and that the premises were within the operation of the relevant sections of the said Increase of Rent and Mortgage Interest (Restrictions) Acts.

(d) In disregarding the fact that as the Poor Law Valuation of the said premises was less than £25 the said premises were at all material times subject to the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Acts relating to the fixing of the standard rent thereof and that the tenant, the applicant herein, was at all material times the tenant thereof and as such a person entitled to make the said application.

(e) In disregarding the evidence tendered as to the letting value of the said premises in 1914 and as to their condition and as to other factors material for the fixing of the standard rent under the provisions of sect. 2 of the said Increase of Rent and Mortgage Interest (Restrictions) Act, 1923.

In pursuance of the leave thus given the applicant appealed to the Supreme Court (1).

By a lease, dated 6th November, 1920, "a dwellinghouse, shop and premises" were let for a term of 80 years from 9th November, 1920, at a yearly rent of £400, reducible to £300 as therein provided. The Poor Law Valuation of the entire premises was £22. The tenant never resided in the premises but sub-let the residential portion to a number of sub-tenants, while she herself carried on business in the shop. No dispute had ever arisen between the tenant and her landlord as to the rent reserved by the said lease, and none of the sub-tenants had ever instituted any proceedings under the Increase of Rent and Mortgage Interest (Restrictions) Acts.

On 8th June, 1933, the tenant served notice on the landlord of an intention to apply to the Circuit Court pursuant to the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 to 1930, for an order under sect. 2, sub-sect. 1 (b), of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, determining the standard rent of "the dwelling house"—this being subsequently amended to "the dwellinghouse, shop and premises" (following the words of the lease) by the Circuit Court Judge on the hearing of the application, the landlord not objecting.

The Circuit Court Judge held that the tenant was not entitled to the benefit of the Acts as she was not in personal occupation or actual possession of the premises, and refused the application, and, on appeal, the High Court (Hanna and O'Byrne JJ.) affirmed his decision, holding that the case was governed by the principles laid down by the Supreme Court in Foleyv. Galvin, [1932] I. R. 339.

On appeal to the Supreme Court (Kennedy C.J., FitzGibbon and Murnaghan JJ.) the decision of the High Court was affirmed.

Per Kennedy C.J. (FitzGibbon J. concurring): In relation to the increase of rent (restrictions) provisions of the Act of 1923 a "standard rent" is only the basis for the calculation of an actual rent to be paid by the tenant. When the actual rent is in dispute an application to the Circuit Court may be made to have the rent fixed, and the first step in the calculation is to determine a "standard rent" as defined by the said Act, but there is no justification for an application by either party in a general way, irrespective of any existing dispute as to the amount of rent payable by the tenant to the landlord, and not for the purpose of invoking the ejectment or mortgage provisions of the Act, to use the machinery of the Court to ascertain what the Court thinks the amount of the standard rent should be. Further, the tenant was not entitled to invoke the assistance of the increase of rent (restrictions) provisions of the Act as she was not in any sense the occupying tenant and "the dwellinghouse, shop and premises" comprised in the lease did not constitute "a dwellinghouse" to which the Act applied.

Per Murnaghan J.: No standard rent could be fixed in respect of the shop, as the Act did not apply to business premises held under a letting for a term of years (sect. 17, sub-sect. 2); and the tenant could not ask the Court to fix a standard rent upon the premises as being her "dwelling-house"because she did not reside in the premises. Her application covered the...