Irish Shell and B. P. Ltd v John Costello Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Doyle
• Judgment Date: 18 March 1980
• Neutral Citation: 1980 WJSC-HC 1183
• Date: 18 March 1980

1980 WJSC-HC 1183

4045P/1974

IRISH SHELL AND B.P. LTD. v. JOHN COSTELLO LTD.

IRISH SHELL BP LIMITED

and

Plaintiffs

JOHN COSTELLO LIMITED

Defendents

1 Judgment of Mr. Justice Doyle delivered the 18th day of March 1980

2 This action, although in form claim for on injunction to restrain trespass, in feet involves an examination of the contractual relationship set up between the plaintiffs and the defendants in relation to the occupation of a service station at Friarsland, Roebuck Road, in the City of Dublin. The plaintiffs who engage in the sale and distribution of petrol and oil products claim that the defendants were in occupation of the premises in question as hirers or licensees of the plaintiffs of the petrol filling station at Friarsland foresaid. The defendants however claim that the nature of their occupancy/ amounted to a tenancy at law and they claim that that tenancy is still validly subsistent. If the defendants’ occupation is that merely of a licensee or hirer it would be sufficient for the plaintiffs to show that that occupation had been validly terminated in order that they might justify their claim for an injunction to restrain the defendants from trespassing upon what would then have become exclusively the plaintiffs’ land. If on the other bond the legal relationship set up by the contract entered into between the parties is that of landlord and tenant it have to be decided whether or not that relationship had been validly determined and, if so, whether any rights under the Landlord and tenant Acts may afford relief to the defendants.

3 The plaintiffs claim that the defendants’ occupation of the service station is subject to the terms of an agreement in writing dated the 14th day of February 1974 made between the plaintiffs and the defendants. The agreement was expressed to be made between Irish Shell and 5.P. Limited, therein called "the company", of the one part and John Costello Limited thereinafter called "the hirer" of the other part. For brevity in the course of this judgment the parties to this agreement will be known respectively as "Irish Shell" and "Costello Limited". It has been found necessary to consider all the terms and conditions as agreed during the hearing of this action but the main provisions are as follows. First, Shell agreed to hire to the hirer, that is Costello Limited the tanks, pumps, machinery, goods and articles described and set out in the schedule to the agreement and thereafter called the equipment. Costello Limited agreed to pay to Irish Chell the sum of 625 for the term of the agreement which was for the period of six months from the 1st day of January 1974, a total sum to be paid by monthly instalments on the 1st day of each month. The agreement went on to provide that Irish Shell "licenses the hirer (Costello Limited) for the duration of this agreement to use the services/ filling station known as Friarsland Service station hereinafter called the site for the use thereon of the said equipment". There followed a number of provisions setting out the obligations undertaken by Costello Limited as to the manner in which the equipment and the site were to he used; in particular these conditions provided for the keeping of the site open for the sale to the public of motor fuel and lubricating oil and other motor-accessories during certain days and hours; a prohibition against the carrying on, without the written consent of Irish shell, of any trade or business whatsoever other than that of a petrol filling station or ancillary activities. Costello Limited under the agreement also undertook not to purchase, sell or offer for sale upon the site motor fuel, oil or other products other than those supplied by Irish Shell and to insure fully against all public liability risks. Costello Limited also bound themselves not, without the written consent of the company first having been obtained, to assign or part with the possession of the equipment or any part thereof. Irish Shell undertook inter alia to insure the equipment against damage by fire and to keep the site and equipment in repair. Irish Shell also undertook to supply to Costello Limited such quantities of Irish Shell's motor fuel, oil and other products as Costello Limited might reasonably require. A list of equipment of the nature commonly to be found in service stations was scheduled to the agreement.

4 In fact Costello Limited had occupied the premises under earlier agreements between the parties. Costello Limited contended that it with its predecessors in title, had since the year 1967 occupied or held the said premises under a succession of instruments in writing. The initial agreement in 1967 was between Irish Shell and Mr. John Costello. Subsequently the company known as Costello Limited was formed of which Mr. John Costello and his wife were the sole directors and on the 29th of November 1971 Irish Shell entered into an agreement with Costello Limited for the purpose of continuing the operation of the Friarsland...