Hennessy v Cahill

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 08 November 1945
• Date: 08 November 1945

Hennessy v. Cahill

DERMOT G. HENNESSY

Plaintiff

and

WILLIAM P. CAHILL Defendant

Landlord and tenant - lease - Construction - Covenant by lessee to "bear and pay all taxes, rates and outgoings now payable or hereafter to become payable by the lessee in respect of the said premises" - Town rates - Payable by lessee - Whether lessee entitled to deduct amount of rates paid from the rent.

Appeal from the Circuit Court.

By an indenture of lease, dated the 18th of August, 1858, made between Thomas Henry Barton, of the one part, and William Bindon Blood, of the other part, the lands of Attythomasrevagh otherwise Rockbarton, situate in the parish of Rahoon and barony and county of Galway, were demised by the said Thomas Henry Barton, who was entitled to a freehold estate therein, to the said William Bindon Blood, his executors, administrators, and assigns, for the term of 999 years from the said 18th of August, 1858, at the annual rent of £30 2s. 0d., payable half-yearly, the lessee therein covenanting for himself, his executors, administrators, and assigns, with the lessor, his heirs and assigns, that he (the lessee), his executors, administrators, and assigns "during the said term will pay the half-yearly rent hereinbefore reserved, on the days and in the manner aforesaid, and that he will bear and pay all taxes, rates and outgoings now payable or hereinafter to become payable by the lessee in respect of the said premises."

The lease further provided for the erection on the premises by the lessee, within twelve months from the date thereof, of a dwellinghouse and offices to be used only for the purpose of a private dwellinghouse and to be kept in good condition and repair by the lessee, his executors, administrators, or assigns.

The rent reserved by the said lease was paid in full, without any deduction by the lessee and his successors (save for landlord's income tax), down to the year 1941, but subsequently to that date the defendant, as the successor in title to the lessee, sought to make certain deductions from the said rent on foot of town rates in respect of the premises paid by him.

The plaintiff, in his civil bill, dated the 26th of August, 1943, claimed payment by the defendant of the sum of £60 4s. 0d., being the full amount of two year's rent due to the 25th of March, 1943.

The defendant, in his defence, as amended, in addition to claiming that he was entitled to have the rent reserved by the said lease adjusted pursuant to the provisions of s. 54 of the Local Government (Ireland) Act, 1898, contended that he was entitled to deduct from the rent, as adjusted, one-half of the amounts paid by him in respect of certain town rates, and he brought into Court the sum of £28 9s. 5d., which amount, he alleged, was sufficient to satisfy the plaintiff's claim.

The town rates, with respect to which the defendant claimed to be entitled to the above deduction from his rent, comprised a number of rates payable by virtue of various public and local Acts, namely, an improvement rate, a paving and repairing rate, a sanitary rate, a technical rate, an advertising rate, and a Salthill development rate.

The Circuit Court Judge held that the defendant was entitled to make the deductions claimed by him, and he dismissed the civil bill, the defendant undertaking to pay to the plaintiff the amount due to him in respect of the rent due after taking credit for all proper and lawful deductions. From this order the plaintiff appealed.

A lease of certain freehold land in the town of Galway for a term of 999 years, which was made in the year 1858, contained a covenant by the lessee that he would build on the premises, within the time and at not less than the minimum cost therein specified, one dwellinghouse and offices, with a further covenant that he, his executors, administrators, and assigns would, during the term of the lease, pay the annual rent thereby reserved and "bear and pay all taxes, rates and outgoings now payable or hereinafter to become payable by the lessee in respect of the said premises."

Among the taxes, rates and outgoings payable in respect of the promises were certain town rates, which, so far as the evidence showed, had always been paid by the lessee. In the year 1941 the defendant, who was then entitled to the interest of the lessee under the said lease, claimed that he was entitled to deduct from the amount of rent payable by him under the lease one-half of the amount of the current town rates so paid by him. The plaintiff, who was entitled to the interest of the lessor under the said lease, thereupon issued a civil bill claiming the full amount of the rent then due without deduction, and the defendant claimed to be entitled to credit for the amount of town rates so paid by him, and lodged a sum in Court with his defence.

Held that the lessee was entitled to the deduction claimed.

Cur. adv. vult.

Haugh J.:—

This is a civil bill by the plaintiff, Dermot G. Hennessy, a solicitor practising in Galway, against William P. Cahill, a Justice of the District Court, who resides at "Gurthard,"Rockbarton, Salthill, Galway.

This claim is for £60 4s. 0d., being for two years' rent alleged to be due by the defendant to the plaintiff, the first quarter of which was due on the 29th September, 1941, and the last quarter on the 25th March, 1943.

The defendant denies that this sum is due, and the action was heard before the Circuit Court Judge at Galway on the 16th day of October, 1943, whereupon it was ordered that, the claim be dismissed, because of the defendant's right to deduct from each pound of the rent payable by him in each year one-half of the rate in the pound in respect of each of the rates set forth in paragraph 2 of his defence, that is, the town improvement rate; the paving rate; the technical rate; the sanitary rate; the advertising rate and the Salthill rate, along with a right to have his rent adjusted under s. 54 of the Local Government (Ir.) Act, 1898.

No oral evidence was called by either party.

The defendant has appealed against the order of the Circuit Court Judge.

At an early stage in this appeal it was evident that in the interests of the parties and the public generally a...