Harrisrange Ltd v Duncan

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 25 January 2002
• Neutral Citation: [2002] IEHC 14
• Court: High Court
• Docket Number: [2001 No. 269S]
• Date: 25 January 2002

HARRISRANGE LTD v. DUNCAN

BETWEEN

HARRISRANGE LIMITED

PLAINTIFF

AND

MICHAEL DUNCAN

DEFENDANT

[2002] IEHC 14

No. 269S/2001.

THE HIGH COURT

Synopsis:

LEASE

Assignment

Right to new tenancy - Compensation for disturbance - Improvements - Ejectment civil bill for overholding - mesne rates - Summary procedure - Whether a lessee who remains in occupation of the demised premises pending the court's determination of his right to a new tenancy, on being ultimately unsuccessful is obliged to pay mesne rates for that period (2001/269S - McKechnie J - 25/1/2002)

Harrisrange Ltd v Duncan - [2003] 4 IR 1

Facts: By indenture of assignment dated 31st March 1986 the defendant succeeded to the Lessee's interest in premises described as 32A Dawson Street in the City of Dublin. This lease expired on 30th September 1997. The defendant served a notice of application under section 21 of the Landlord and Tenant (Amendment) Act, 1980 on 19th October, 1998 claiming the right to a new tenancy and compensation for disturbance and/or improvements. Accordingly he failed to serve this application prior to the termination of the lease. On 5th November 1998 His Honour Judge O'Hagan granted the plaintiff possession of the said premises. Accordingly on 12th December the plaintiff issued an Ejectment Civil Bill for Overholding. The defendant unsuccessfully appealed the decision of 5th November 1998 and Mr Justice Butler stayed the execution of his Order for the period from 1st January to the end of February, 2001, and did so on condition that for this length of time mesne rates would be paid in a sum calculated at £8,000 per annum. In compliance with this order, possession of the demised premises was surrendered by the defendant. The present proceedings were instituted by way of Special Summons, the plaintiff sought from the defendant mesne rates for the period from 1st October, 1997 up to and including 31st day of December, 2000. In relation to the plaintiff's motion for liberty to enter final judgment, the defendant sought leave to defend unconditionally or alternatively on the terms as suggested by him.

Held by McKechnie J in refusing the plaintiff's application: That the following 7 factors should be taken into consideration in determining the suitability of Summary procedure;

1. The power to grant summary judgment should be exercised with discernible caution, in this regard the court should look at the entirety of the situation and consider the particular facts of each individual case. In so doing the court should assess not only the defendant's response, but also the cogency of the evidence adduced on behalf of the plaintiff.

2. That where there are no issues or issues of simplicity only or issues easily determinable, then this summary procedure is suitable for use. Where however there are issues of fact which in themselves are material to success of failure, then their resolution is unsuitable for this procedure.

3. That where there are issues of law, this summary process may be appropriate but only so, if it is clear that fuller argument and greater thought, is evidently not required for a better determination of such issues.

4. That the test to be applied, as now formulated is whether the defendant has satisfied that court that he has a fair or reasonable probability of having a real or bond fide defence. This test is not the same as and should not be elevated into a threshold of a defendant having to prove that his defence will probably succeed or that success is not improbable, it being difficult if there is an arguable defence.

5. That leave to defend should be granted unless it is very clear that there is no defence.

6. That leave to defend should not be refused only because the court has reason to doubt the bona fides of the defendant or has reason to doubt whether he has a genuine cause of action.

7. That leave should not be granted where the only relevant averment in the totality of the evidence, is a mere assertion of a given situation which is to form the basis of a defence. The overriding determinative factor, bearing in mind the constitutional basis of a person's right of access to justice either to assert or respond to litigation, is the achievement of a just result whether that be liberty to enter judgment or leave to defend, as the case may be.

8. That section 28 of the 1980 Act applies only as and from the date of the tenant's application to the Court and not from any earlier date even where a Notice of Intention to Claim Relief has been served. The section therefore operates where an application for a new tenancy or to fix the terms thereof is pending and where the pre-existing tenancy was not terminated by ejectment or surrender. In such circumstances the tenant may, if he so decides, continue in occupation until the application is finally determined. But whilst so continuing, he is subject to the terms of the expired lease, including the obligation to pay the rent reserved thereunder.

9. That the right conferred by Section 28 of the 1980 Act does not create or establish any new statutory tenancy. The right is simply one to continue in occupation and no more. Such a right is personal, that is personal to the pre-existing tenant and, quite unlike a contractual tenancy, does not create any estate or interest capable of being transferred or transmitted either inter vivos or on death.

10. That the overriding duty of the court when asked to construe any piece of legislation is to try and ascertain what the true will and intention of the legislature is. The first step in this process is to consider, in the context in which they appear, the words themselves and, in the absence of any contra indicator to give such words their ordinary and natural meaning.

11. That in relation to section 28, the relevant wording is clear as to when and in what circumstances recoupments or readjustments may be made under that section. The plain meaning and understanding of the words can only convey the view that under this section a tenant must have been successful in his assertion for a new tenancy before there can be any question of recoupments or readjustments. Accordingly the defendant was only obliged to the plaintiff to the extent of the rent which was then current at the expiry of his tenancy.

12. That due to the fact that the defendant did not adduce any evidence to support his claim for compensation for improvements and that this claim was dismissed by two previous courts it was not open to him to reopen that issue and accordingly leave to defend on this point was refused.

That if permission was needed, which is questionable, to obtain leave to claim damages by way of counterclaim against the plaintiff for wrongful re-entry, trespass, breach of covenant for quiet enjoyment, assault and battery, then leave should be granted unconditionally.

Reporter: L O'S

Citations:

LANDLORD & TENANT (AMDT) ACT 1980 S20

COURTS ACT 1981 S22

RSC O.37

RSC O.37 r7

RSC O.37 r10

FIRST NATIONAL COMMERICAL BANK PLC V ANGLIN 1996 1 IR 75

BANQUE DU PARIS V DE NARAY 1984 1 LLOYDS 21

NATIONAL WESTMINISTER BANK PLC V DANIEL 1993 1 WLR 1453

GOV & BANK OF IRELAND V EBS BUILDING SOCIETY 1999 1 IR 220

CRAWFORD V GILLMOR 1891 30 LR IR 238

ACC BANK PLC V ELIO MALOCCO 2000 3 IR 191

AER RIANTA CPT V RYANAIR LTD 2002 1 ILRM 381

LANDLORD & TENANT (AMDT) ACT 1980 S28

LANDLORD & TENANT (AMDT) ACT 1980 PART II

LANDLORD & TENANT (AMDT) ACT 1980 S5

LANDLORD & TENANT (AMDT) ACT 1980 S13(1)(a)

LANDLORD & TENANT (AMDT) ACT 1994 S3

LANDLORD & TENANT (AMDT) ACT 1980 S16

LANDLORD & TENANT (AMDT) ACT 1980 S18(2)

LANDLORD & TENANT (AMDT) ACT 1994 S5

LANDLORD & TENANT (AMDT) ACT 1980 S27

KEECH V SANDFORD SEL CAS CH 61

LANDLORD & TENANT (AMDT) ACT 1980 S21

BAUMANN V ELGIN CONTRACTORS 1973 IR 169

LANDLORD & TENANT ACT 1931 S38

LANDLORD & TENANT (REVISIONARY LEASES) ACT 1958 S23

LANDLORD & TENANT (AMDT) ACT 1980 S40

LANDLORD & TENANT (AMDT) ACT 1980 S40(1)

LANDLORD & TENANT (AMDT) ACT 1980 S40(2)

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978

LANDLORD & TENANT (AMDT) ACT 1984 S12

LANDLORD & TENANT (AMDT) ACT 1984 S12(1)

LANDLORD & TENANT (AMDT) ACT 1984 S12(2)

PHOENIX PICTURE PALACE LTD V CAPITAL & ALLIED THEATRES LTD 1951 IR JUR REP 55

RENT RESTRICTIONS ACT 1960 S32

RENT RESTRICTIONS (AMDT) ACT 1967 S10

LANDLORD & TENANT (AMDT) ACT 1971 S11

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982

LAND LAW (IRL) ACT 1881

WYLIE LAND LAW PARA 149

CORK CO COUNCIL V WHILLOCK 1993 1 IR 231

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

TEXACO (IRL) LTD V MURPHY 1991 2 IR 449

HOWARD V COMMRS OF PUBLIC WORKS 1994 1 IR 101

LAWLOR V FLOOD 1999 3 IR 107

FRESCATI ESTATE LTD V WALKER 1975 IR 177

NESTOR V MURPHY 1979 IR 326

DPP V MURPHY 1999 1 IR 98

LANDLORD & TENANT (AMDT) ACT 1980 S18(4)

TWIL LTD V KEARNEY UNREP SUPREME 28.6.2001

MEARES V REDMOND 1879 4 LR IR 533

HARRISON EJECTMENTS IN IRELAND 446 - 447

DEALE LAW OF LANDLORD & TENANT 69

LANDLORD & TENANT LAW (AMDT) ACT (IRL) 1860 (DEASY'S ACT) S77

LANDLORD & TENANT LAW (AMDT) ACT (IRL) 1860 (DEASY'S ACT) S5

LANDLORD & TENANT LAW (AMDT) ACT (IRL) 1860 (DEASY'S ACT) S46

STATUTE OF LIMITATIONS (AMDT) ACT 1991

LANDLORD & TENANT LAW (AMDT) ACT (IRL) 1860 (DEASY'S ACT) S21

LANDLORD & TENANT (AMDT) ACT 1980 S61

LANDLORD & TENANT (AMDT) ACT 1980 S87

LANDLORD & TENANT LAW (AMDT) ACT (IRL) 1860 (DEASY'S ACT) S48

MAC CAUSLAND & KIMMITT V CARROLL & DOOLEY 1938 72 ILTR 158

1 Mr. Justice William M. McKechnie delivered the 25th day of January, 2002

2 1. By Indenture of Lease made the 17th day of May, 1977, between MEPC Ireland Limited of the one part and AURIC Limited of the other part, All That and Those the Hereditaments and Premises therein described as Number 32A Dawson Street in the City of Dublin were demised unto the said AURIC Limited for the term of 21 years from the 1st day of October, 1976, subject...