Lawless v Losty

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 30 July 1942
• Date: 30 July 1942

Lawless v. Losty

MARY CLARKE LAWLESS

Plaintiff

and

ANN LOSTY

Defendant.

Practice - Circuit Court - Landlord and tenant - Ejectment grounded on forfeiture - Civil bill for overholding - Application for summary judgment - Whether sustainable - Rules of the Circuit Court, Or. XVI, r. 1.

Appeal from the Circuit Court.

The defendant appealed from an order of Judge Shannon in the Dublin Circuit Court giving the plaintiff summary judgment in an ejectment action.

The facts were as follows:—By a written agreement, dated the 20th February, 1934, the plaintiff let to the defendant a dwelling-house known as 2 Cliff Terrace, Sandycove, County Dublin, for the term of three years from the date of the said agreement at the yearly rent of £65 payable by four quarterly instalments on the dates therein specified. It was thereby provided that "if and whenever any part of the said rent shall be behind and unpaid for or by the space of twenty-one days after any of the dates for payment hereinbefore mentioned, whether legally demanded or not, or if and whenever there shall be any breach of any of the covenants by the tenant hereinbefore contained, the landlord may re-enter upon the said premises and thereupon the term hereby created shall absolutely determine."

On the expiration of the said term of three years the defendant remained in possession as tenant from year to year. On the 9th day of February, 1942, there being then three quarterly instalments of rent in arrear for twenty-one days and upwards, the plaintiff served on the defendant a notice in writing referring to this re-entry clause and requiring the defendant to yield up possession of the premises within three days from that date. Possession being refused, the plaintiff instituted these proceedings by a civil bill, dated 17th February, 1942. This civil bill was in the form (Form 2 D.) prescribed in the Second Schedule to the Rules of the Circuit Court for ejectments for overholding, and set out the matters above mentioned.

An appearance was entered on the 26th February, and on the 3rd March a defence was filed, alleging that the tenancy had not been lawfully determined.

On the 6th March the plaintiff served notice that an application for summary judgment would be made on the 13th March.

On the hearing of this application it was contended on behalf of the defendant that the application must be refused, first, on the ground that an application for summary judgment under Or. XVI of the Circuit Court...