Kenny Homes & Company Ltd v Leonard and Another

JurisdictionIreland
JudgeMr. Justice Costello
Neutral Citation[1997] IEHC 230
CourtHigh Court
Docket NumberRecord No. 11538P./1997
Date1997
KENNY HOMES LTD v. LEONARD & LECORN LTD
???CO. LIMITED
PLAINTIFF

AND

STEPHEN LEONARD AND LECORN LIMITED
DEFENDANTS

[1997] IEHC 230

Record No. 11538P./1997

THE HIGH COURT

Synopsis

Landlord and Tenant

Tenancy; licence; jurisdiction; hiring and leasing agreement; injunction sought restraining the defendants from trespassing; whether court has jurisdiction to grant an injunction when an application for a new tenancy is pending before another court; whether the agreement created a tenancy or a licence; whether the premises was a tenement; consideration of the intention of the parties and the transactions as a whole; whether possession was exclusive; whether the defendants were guilty of trespass; ss. 5, 20, 28 Landlord and Tenant (Amendment) Act, 1980

Held: No contract of tenancy; premises not a tenement; relief granted

Kenny Homes & Co Ltd. v. Leonard - High Court: Costello P. - 11/12/1997

Citations:

LANDLORD & TENANT (AMDT) ACT 1980 S28

IRISH SHELL & BP LTD V JOHN COSTELLO LTD 1981 ILRM 66

LANDLORD & TENANT (AMDT) ACT 1980 S5

1

Judgment of Mr. Justice Costello delivered the 11th December, 1997.

Mr. Justice Costello
2

These proceedings relate to a site in the heart of the city of Cork of a little over .7 acres. Entrance to the site is by means of an archway under a three storey house on Grand Parade and from another access on South Main Street. On the left of the site (as one enters it) is the River Lee. The site is presently, and has for many years, been used as (a) a filling station and garage selling the products of Irish Shell Ltd. and (b) as a car park. Over the entrance to the site on Grand Parade is a sign which displays Irish Shell's logo and the words "City Car Park". By agreement of the 17 December, 1996 the plaintiffs agreed to purchase the site from Irish Shell Limited and they intend to develop it by constructing apartments and commercial units, purchasing it subject to a hiring and license agreement dated the 1 of October, 1994 made between Irish Shell Limited and one Stephen Leonard, who is the first named defendant. Mr. Leonard sold his interest in the site on the 12 December, 1996 to Lecorn Limited who are the second named defendants. Mr. Leonard's agreement of the 1 October, 1994 with Irish Shell terminated on the 30 September, 1997 but by notice of the 30 September given pursuant to section 20 of the Landlord and Tenant (Amendment) Act1980Lecorn Limited claimed that a monthly tenancy of £1,446 per month (plus vat) had been created by the agreement of the 1 October, 1994 and the grant of a new tenancy under Part II of the 1980 Act or, in the alternative, £1m compensation. This was followed by an application for a new tenancy to the Cork Circuit Court on 4 November, 1997. It claimed that the premises were a "tenement" within the meaning of the Act, that they were held under written contract of tenancy made the 1 October, 1994 between Irish Shell Limited and Mr. Leonard, that they were in the occupation of the then tenant and had been continuously in occupation of the then tenant and his predecessors in title for upwards of 20 years or alternatively during the whole of three years preceding the 1 October, 1994 and bona fide used by the tenant thereof for the purpose of carrying on a business. By answer filed the 17 November, 1997 the plaintiffs herein claimed inter alia that the premises were not "a tenement", and that the contract of the 1 October, 1994 was not a contract of tenancy. In addition the defendants pleaded that if the contract was a contract of tenancy they intended to pull down or rebuild or reconstruct the buildings on the premises and further that the creation of the tenancy would not be consistent with good estate management.

3

These proceedings had been commenced by summons in this court of the 6 October, 1997 and on the same day a motion for an injunction restraining the defendants, that is Mr. Leonard and Lecorn Limited, from trespassing on the plaintiffs lands at the "City Car park", Grand Parade, Cork. It is now agreed that if the plaintiffs are entitled to relief an order should be made against the second-named defendant only. Affidavits were filed by the parties and eventually it was ordered that this motion be tried as the trial of the action on oral evidence.

4

At the hearing of the trial counsel on behalf of the defendants raised a preliminary issue. It was submitted that the court had no jurisdiction to grant an injunction because of the proceedings pending in the Cork Circuit Court under the 1980 Act. It was urged that (a) exclusive jurisdiction was given to the Circuit Court under the 1980 Act to determine Lecorne's right to a new tenancy, (b) that this court had no jurisdiction to determine the issues arising on that application, (c) that by virtue of section 28 of the 1980 Act Lecorn were entitled to retain possession of the premises pending their application for a new tenancy, (d) that accordingly the injunction claimed could not be granted. I disagreed with these submissions. I concluded that (a) the Circuit Court had exclusive jurisdiction under the 1980 Act to hear and determine claims for a new tenancy, (b) that the present proceedings were for injunctive relief based on a claim that the defendants were trespassers (c) that the 1980 Act did not deprive this court of jurisdiction to hear such a claim, (d) that ordinarily, where a right to a new tenancy under the 1980 Act was contested on the ground that a "tenancy" did not exist or that the premises were not a "tenement" these issues should be determined in the Circuit Court and this Court should stay proceedings in which these issues were raised, that (e) because of the particular urgency in this case the court should not decline jurisdiction, that (f) should the court decide that (i) the agreement of the 1 October, 1994 constituted a "tenancy" and (ii) the site constituted a "tenament" within the meaning of the Act then section 28 of the Act applied and Lecorn would be entitled to retain possession pending the determination in the Circuit Court of the application for a new tenancy, and I would accordingly dismiss these proceedings. I therefore decided to hear oral evidence and determine these two issues. Should I decide them in Lecorn's favour, the Circuit Court would them be required to determine whether or not a new tenancy should be granted in the light of the plaintiff's intended use of the site and perhaps the issue of compensation.

5

The defendant Mr. Stephen Leonard had two brothers, Jack and Christie. The three brothers had worked on the site since 1960. At all times they occupied under agreements made with Irish Shell with one or other of them. Initially these agreements were yearly and later for three-yearly periods. They were firstly made between Irish Shell Limited and Jack Leonard. After his death in 1988 they were between Irish Shell and Christie Leonard. Christie died in 1992 and the two final agreements were made with Stephen Leonard the first-named defendant herein. The earlier agreements are not now available but Mr. Leonard accepts that they were in the same form as the three agreements which were proved in evidence.

6

The first agreement which was proved was dated the 28 June, 1990. It was made between Irish Shell Limited and Christopher Leonard. It is entitled "Hiring and License Agreement". It was an agreement by which Irish Shell hired the equipment referred to in the agreement for three years from the 10 December, 1988 and granted him a license to be present at the filling station known as "City Car Park" for this period. The second agreement was made with Mr. Stephen Leonard and was signed by him on the 25 November, 1992. It is similarly headed and was an agreement for the hire of the equipment for three years from the 1 October, 1991 and the granting of a similar license. The third agreement is also between Irish Shell Limited and Stephen Leonard. It was signed by him on the 25 May, 1994 and is similarly entitled and is an agreement to hire the equipment for three years from the 1 October, 1994 and to grant a similar license for that period.

7

Over the years the occupation of the site and its physical characteristics have changed. In the 1960's it was used as a garage and petrol filling station and initially consisted of petrol pumps, repair ramps, repair workshops and a car washing unit. The business that was carried on was the sale of petrol and oil and the carrying out of repairs and the painting and washing of vehicles. A spray painting operation was initially carried on by a person who paid a rent to the Leonard brothers. At one period there were 32 people working on the premises. In 1969 the operator of the spray painting unit left and it and 12 workshops were closed down. There was then a letting made of this area to a Mr. Maher for two years from 1970 to be used by him as a public car park. Mr. Maher left and after 1972 the Leonard brothers took over the operation of the car park and carried it on in conjunction with the garage and petrol filling station. In 1972 larger petrol tanks and new petrol pumps were installed by Irish Shell Limited and work was done on the canopies over the petrol pumps. There were derelict buildings on other land adjacent to the site and these were knocked down by Irish Shell in the 1970's. The car park area was extended and a license to use the larger site was granted by Irish Shell.

8

There are presently, as one enters from Grand Parade, 4 petrol pumps under a canopy, then two petrol pumps under a canopy. There are two small offices between the first set of pumps. There is a small car park office which is used to receive payment and keys from users of the car park. There is a three storey building over the entrance arch on Grand Parade, which for a time was used for storage but now it is derelict. There are four large motor fuel tanks underground. These are built under...

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