Groome v Fodhla Printing Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 05 July 1943
• Date: 05 July 1943
• Court: Supreme Court

Supreme Court.

Groome v. Fodhla Printing Co.

ELIZABETH GROOME

Plaintiff

and

THE FODHLA PRINTING COMPANY, LIMITED

Defendants.

Landlord and tenant - Lease - Old coach-house and stable converted into a store - Covenant to keep in "good and tenantable repair" - Covenant to yield up premises "in good and tenantable repair" - Tie-beams supporting roof removed prior to date of lease - Inherent radical defect in premises at time of lease - Liability of tenant to repair such defect - Whether repair involving expenditure excessive in proportion to the value of the tenement - Meaning of "value of tenement" - Damages for breach of covenant to repair - Limitations imposed on amount of damages recoverable by s. 55 of the Landlord and Tenant Act, 1931 - Diminution in value of reversion - How reversion to be valued - Landlord and Tenant Act, 1931 (No. 55of 1931), ss. 2, 55.

Witness Action.

The statement of claim was as follows:—

1. By indenture of lease, dated 29th day of June, 1929, and made between the plaintiff of the one part and the defendants of the other part, the plaintiff demised all that the store at the rere of the premises, No. 8 Cavendish Row, situate at Rutland Place in the City of Dublin, to the defendants from 1st July, 1929, for the term of 21 years, subject to the rent thereby reserved and to the covenants on the lessees' part and conditions therein contained.

2. By said indenture of lease the defendants covenanted with the plaintiff to keep the demised premises and all improvements and additions thereto in good and tenantable repair, order and condition.

3. The defendants have not kept the said premises in good or tenantable repair, order or condition, and the said premises are now out of such repair.

Particulars of want of repair:—

(a) Portion of the N.W. wall and the whole of the N.E. wall facing to Rutland Place is out of repair. (b) Portion of the roof of the premises is out of repair. (c) The gutters and down pipes of the premises have fallen away and are out of repair.

The defendants, after certain formal traverses, relied on s. 55 of the Landlord and Tenant Act, 1931.

The facts have been summarised in the headnote and appear sufficiently for the purposes of this report from the judgment of Hanna J. post.

The defendants appealed to the Supreme Court (1).

The Landlord, and Tenant Act, 1931, s. 55, provides:—

Where a lease . . . of a tenement contains a covenant or agreement . . . on the part of the lessee to put or to keep such tenement in repair during the currency of such lease or to leave or put such tenement in repair at the expiration of such lease and there has been a breach of such covenant or agreement, the following provisions shall have effect, that is to say:—

(a) the damages recoverable for such breach shall not in any case exceed the amount (if any) by which the value of the reversion (whether mediate or immediate) in such tenement is diminished owing to such breach;

(b) save where the want of repair in shown to be due, wholly or substantially, to wilful damage or wilful waste committed by the lessee no damages shall be recoverable for such breach if it is shown that, having regard to the age and condition of such tenement, the repairing thereof in accordance with such covenant or agreement is physically impossible or that, having regard to the age, condition, character and situation of such tenement, the repairing thereof in accordance with such covenant or agreement would involve expenditure which is excessive in proportion to the value of such tenement, or that, having regard to the character and situation of such tenement, such tenement could not when so repaired be profitably used or could not be profitably used unless it is rebuilt, re-constructed or structually altered to a substantial extent.

A coach-house and stable, the structural fabric of which was very old, and which was situated in a back lane in the City of Dublin, had been converted into a store, and was leased in the year 1929 by the plaintiff to the defendants, a firm of printers, for a term of 21 years at the yearly rent of £60. The lease contained the following covenant:—"The tenants for themselves and their assigns and to the intent that the obligations may continue throughout the term hereby created hereby covenant with the landlord to keep the demised premises and all improvements and additions thereto in good and tenantable repair, order and condition, and to yield up the demised premises with the fixtures and additions thereto at the determination of the tenancy in good and tenantable repair in accordance with the covenants hereinbefore contained." In the year 1942 the plaintiff brought an action against the defendants for damages for breach of the above covenant, alleging that portions of the walls and the roof and the gutters and downpipes were out of repair. The trial Judge (Hanna J.) found that the premises were in a reasonable condition of repair for an old store when demised; that the defendants did not keep the premises in good and tenantable repair, the principal want of repair being in the condition of the side walls and the roof, the latter having sagged; that the sag in the roof had been caused by the tie-beams which supported the roof having been removed prior to the date of the lease, and he held that this want of repair should have been made good by the defendants. Hanna J., applying the provisions of s. 55 of the Landlord and Tenant Act, 1931, valued the reversion at £1,400 and the damage to the reversion at £350, and, as under clause (a) of the said section the damages could not exceed the latter amount, he fixed the damages at £350. As regards clause(b) of the section he found: 1, that the want of repair was not due to "wilful damage or wilful waste committed by the lessees";2, that, "having regard to the age and condition of the tenement the repairing thereof in accordance with the covenant" was not "physically impossible"; 3, that "having regard to the age, condition, character and situation of the tenement, the repairing thereof in accordance with the covenant" would not "involve expenditure which was excessive in proportion to the value of the tenement"; 4, that "having regard to the character and situation of the tenement," if repaired, it could be "profitably used" without any substantial alteration, rebuilding or reconstruction. Accordingly the defendants' claim that no damages for the breach of covenant were recoverable by reason of the said clause (b) of s. 55 was insustainable.

Hanna J., therefore gave judgment for £350.

Lurcott v. Wakely and Wheeler, [1911] 1 K. B. 905, applied.

The defendants appealed to the Supreme Court (Sullivan C.J., Murnaghan, Geoghegan, O'Byrne and Black JJ.).

Held by a majority of the Supreme Court (Sullivan C.J., O'Byrne and Black JJ.) that the appeal should be dismissed.

Murnaghan and Geoghegan JJ. were of opinion that there should be a new trial as the facts relating to the removal of the tie-beams and other material facts had not been found by Hanna J.

Construction of covenants to repair, and the limitations imposed by s. 55 of the Landlord and Tenant Act, 1931, on the amount of damages recoverable for breach of such covenants, considered by Hanna J. and by the Supreme Court.

Hanna J.:

This is an action brought to recover damages for breach of a covenant to repair certain premises at the rere of No. 8 Cavendish Row and situated in Rutland Place, Dublin.

The premises were described in the lease as a store, above which there is an upper floor covered with a roof.

It is necessary to state some of the facts as to the history of these premises. Under a fee farm grant, dated 24th March, 1884, from Thomas R. Murray to George Wyse it would appear that the premises were described in a lease, dated 27th June, 1760, as a new brick dwelling-house lately built by Henry Darley, and as having a coach-house, stable and other offices at the rere. From the present nature of the store I am of opinion that, at a date which cannot be fixed, the out-offices (that is, the coach-house, stable, etc.) were converted into a large store.

The house, No. 8 Cavendish Row, which is a well-known hotel, and the store, are owned by the plaintiff, Mrs. Groome, under the fee farm grant to which I have referred.

Prior to the lease to the defendant company, Mrs. Groome or her husband had, on the 9th August, 1921, let the store to Richard Gough, a builder, for a term of ten years at the annual rent of £52 together with all rates and taxes. The premises were to be used by Mr. Gough as a store and workshop only for his business, and he agreed, further, to keep the entire premises in thorough repair during the tenancy, including inside and outside, and to deliver up possession of same in good order, repair and condition, reasonable wear and tear excepted. Mr. Gough surrendered the premises on some date prior to 1929 and on the 29th June, 1929 the lease to the defendant company was made by the plaintiff of the store at a rent of £60 a year, for a term of 21 years, with an option, subject to certain conditions as to the due performance of the tenants' covenants in the lease, for a further term of 21 years at the same rent.

The indenture of lease contained the covenant, which is the subject-matter of this action, in the following words, namely:—

"The tenants for themselves and their assigns and to the intent that the obligations may continue throughout the term hereby created hereby covenant with the landlord as follows:— . . . (3) To keep the demised premises and all improvements and additions thereto in good and tenantable repair, order and condition, . . . (5) To yield up the demised premises with the fixtures and additions thereto at the determination of the tenancy in good and tenantable repair, in accordance with the covenants hereinbefore contained."

It is quite clear that the structural fabric of the store was very old, and one of the principal...