Kinsella v Byrne

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 21 February 1941
• Date: 21 February 1941

Supreme Court.

Kinsella v. Byrne.

JAMES KINSELLA

Plaintiff

and

MYLES J. BYRNE, Defendant (1)

Landlord and tenant - Rent Restriction Acts - Standard rent - Application under par. (b) of sub-s. 1 of s. 2 of Act of 1923 - Standard rent "pending such application" - Lease of plot of ground for 999 years - Dwelling-house subsequently erected - Lessee in occupation on 3rd August, 1914 - Whether rent reserved by lease the standard rent "pending such application" - Estoppel - Arrears of rent - Proceedings for ejectment stayed on consent which was made rule of Court - Consent providing for payment of agreed arrears of rent - Whether, in claim under Rent Restriction Acts, tenant estopped from denying that rent was due - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), s. 1, par. (a); s. 2,sub-s. 1, par. (b).

Case Stated by Maguire P. pursuant to s. 38, sub-s. 3, of the Courts of Justice Act, 1936, on the application of counsel for both parties, for the determination of questions of law arising on an appeal from the Circuit Court to the High Court.

The Case Stated was as follows:—

"1. By indenture of lease, dated the 27th July, 1901, and made between Henry Gore Lindsay of the one part and James Alston of the other part, the plot of ground therein mentioned was demised to the said James Alston for the term of 999 years from the 25th March, 1900, subject to the yearly rent of £4 4s. 0d., and the said James Alston thereby covenanted that he would, within six months from the date thereof, erect upon the said plot of ground one good and substantial dwelling-house at an outlay of £400 at least to the satisfaction of the said lessor.

2. By assignment of the same date, viz., 27th July, 1901, and made between the said James Alston of the one part and Mary Anne Young of the other part, the said James Alston, in consideration of £500, assigned the said plot of ground to the said Mary Anne Young for the unexpired residue of the said term, subject to the said rent and to the covenants contained in the said lease.

3. The said Mary Anne Young thereupon went into possession of the said premises, and on the 3rd August, 1914, she was in occupation of the said plot of ground and the dwelling-house which had been erected thereon pursuant to the said building covenant, and known as 8, Claude Road, Drumcondra, for the unexpired residue of the said term, subject to the said rent of £4 4s. 0d. per annum.

4. The said Mary Anne Young died on the 25th March, 1933, and, on the 8th day of May, 1933, probate of her last will was granted to Adam Lloyd-Blood and Rev. Joseph Thomas Cummins, the executors therein named. By assignment, dated the 27th June, 1933, made between the said executors of the one part and the defendant, Myles J. Byrne, of the other part, the said executors, in consideration of £790, assigned the said plot of ground with the said dwelling-house thereon to the said Myles J. Byrne, for the unexpired residue of the said term, subject to the said rent of £4 4s. 0d.

5. The said Myles J. Byrne thereupon went into actual occupation of the said dwelling-house and premises and so continued down to the 27th September, 1933, when, by an Agreement of that date, he let the said dwelling-house and premises to the plaintiff, James Kinsella, for the term of one year certain, at the yearly rent of £104 payable monthly. The said James Kinsella entered into occupation of the said premises and has so continued since the expiry of the said term as tenant from year to year, subject to the said rent and the other conditions contained in the said Agreement.

6. On the 5th October, 1938, proceedings by summary summons were instituted by the said Myles J. Byrne against the said James Kinsella to recover possession of the said dwelling-house and premises for non-payment of rent. Affidavits were filed on behalf of both parties and, eventually, all further proceedings in the said action were stayed by an order, dated the 18th November, 1938, making the consent therein referred to a rule of Court upon the terms,inter alia, that the arrears of rent found due up to the 1st...