Keating and Fitzpatrick v Turner

• Jurisdiction: Ireland
• Judgment Date: 01 March 1953
• Date: 01 March 1953
• Court: Supreme Court

Keating and Fitzpatrick v. Turner

JOHN JOSEPH KEATING and JOHN IGNATIUS FITZPATRICK

Plaintiffs

and

RICHARD TURNER,Defendant (1)

Supreme Court

Landlord and tenant - Lease - Covenant by lessor to pay and discharge all existing and future rates, taxes, and assessments in respect of the demised premises - Whether covenant extends to the payment of the municipal rate - Validity of covenant - Whether s. 52, sub-s. 2, of the Local Government (Ireland) Act, 1898, is incorporated by s. 63, sub-s. 3. of the Local Government (Dublin) Act, 1930 - Local Government (Dublin) Act, 1930, s. 63, sub-s. 3;s. 64.

By indenture of lease, dated the 28th May, 1947, certain premises in the City of Dublin were demised to the plaintiffs for a term of 21 years, from the 1st June, 1947, at the yearly rent of £300, the landlord entering into a covenant (inter alia) that he and the reversioner for the time being expectant upon the term thereby granted would pay and discharge all existing and future rates, taxes, and assessments payable in respect of the demised premises. All the estate and interest of the landlord subsequently became vested in the defendant. The Corporation of Dublin as the rating authority, acting pursuant to s. 63 of the Local Government (Dublin) Act, 1930, made, assessed and levied the municipal rate on the demised premises for the local financial year, 1948-1949, and demanded and obtained payment thereof from the plaintiffs as occupiers of the premises. The plaintiffs, as tenants, brought an action against the defendant in the Circuit Court for the recovery of the sum paid by them for the rates as moneys payable by the defendant under the said lease and for damage for breach of covenant.

On the hearing by the Supreme Court of a Case Stated by the Circuit Court Judge, it was

Held by the Supreme Court that s. 52, sub-s. 2, of the Local Government Act, 1898, is not incorporated by s. 63, sub-s. 3, of the Local Government (Dublin) Act, 1930, and that the defendant, by virtue of the covenant to pay and discharge all existing and future rates, taxes, and assessments payable in respect of the demised premises, was bound to indemnify the plaintiffs against the sum paid by them to the Corporation of Dublin for the municipal rate in respect of the local financial year ended on the 31st March, 1949.

Held, also, that there is no inconsistency between the provisions of s. 63, sub-s. 3, and s. 64 of the Local Government (Dublin) Act, 1930.

Case Stated by Judge Connolly, one of the Judges of the Circuit Court for the time being assigned to the Dublin Circuit, pursuant to s. 16 of the Courts of Justice Act, 1947. The facts are fully set out in the Case stated which was as follows:—

"1. This action came before the Court for hearing on the 23rd June, 1950. I decided to state this Case and accordingly I adjourned the hearing of the action pending the determination of the Case Stated.

2. The plaintiffs claimed a sum of £68 19s. 2d., being the amount of the municipal rate made by the Corporation of Dublin for the local financial year ended on the 31st March, 1949, in respect of portion of premises at Number 118 St. Stephen's Green West in the City of Dublin which they hold as lessees from the defendant. The plaintiffs contend

that the defendant is bound by a covenant in the lease under which the plaintiffs hold the premises to pay and discharge the said sum. In the alternative, the plaintiffs claim damages for breach of the said covenant.

3. In answer to the plaintiffs' claim the defendant contends that the said covenant does not extend to the payment and discharge of the said municipal rate and that if and so far as the said covenant does extend to the payment and discharge of the said municipal rate it is void at law.

4. The following facts were admitted:—

(a) By indenture of lease, dated the 28th May, 1947, and made between John H. Bergin of the one part and the plaintiffs of the other part the said John H. Bergin demised unto the plaintiffs all those the portions of the buildings and premises Number 118 St. Stephen's Green West in the City of Dublin, consisting of the front and back rooms on the second and third floors respectively and two toilets situate on the third floor from the first day of June, 1947, for the term of twenty-one years at the yearly rent of £300.

(b) By said indenture of lease the said John H. Bergin covenanted with the plaintiffs that he and the reversioner for the time being of the said premises expectant upon the term thereby created would pay and discharge all existing and future rates, taxes, and assessments payable in respect of the demised premises and the said building (except for gas, electric current or contract water rate used therein).

(c) All the estate and interest of the said John H. Bergin in the premises demised by the said lease subsequently became and were at all times material to this action vested in the defendant.

(d) Subsequent to the said 28th May, 1947, the premises demised by the said lease were separately valued at the sum of £50 and became a separate rateable hereditament.

(e) The Dublin City Corporation as rating authority acting under s. 63 of the Local Government (Dublin) Act, 1930, made, assessed and levied on the rateable hereditament, consisting of the said premises so demised, the municipal rate for the local financial year, 1948-1949, amounting to £68 19s. 2d., being twenty-seven shillings and seven pence in the pound on the said rateable valuation of £50.

(f) The said municipal rate was made on and demanded by the said Corporation from the plaintiffs as occupiers of the said hereditaments and was paid by them.

(g) The...