Londonderry & Lough Swilly Railway Company v Gillen

 
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1984 WJSC-CC 2378

HIGH COURT ON CIRCUIT

LONDONDERRY & LOUGH SWILLY RAILWAY CO. v GILLEN
NORTHERN CIRCUIT
COUNTY OF DONEGAL
BETWEEN/
LONDONDERRY AND LOUGH SWILLY RAILWAY COMPANY LIMITED
Applicants
Appellants

AND

MAUREEN GILLEN
Respondent

Subject Headings:

LANDLORD & TENANT: new tenancy

PRACTICE: time limit

MCCARTHY
1

By indenture of lease dated the 8th of November 1956, the applicants hold certain lands and premises at Moville, Co. Donegal, at the yearly rent of £40 for a term of twenty years from the 1st May 1956. It is common case that, on the expiry of the lease, subject to compliance with the terms of the statute, the applicants would have been entitled to a new lease under the Landlord and Tenant Act,1931. The 1931 Act was wholly repealed by the Landlord and Tenant (Amendment) Act, 1980, which came into force, by Ministerial Order, on the 8th September 1980. By virtue of s. 11(3) of the 1980 Act any notice given under the 1931 Act would be treated as a notice under the corresponding provision of the 1980 Act and the provisions of s. 21 of the Interpretation Act,1937in respect of the continuance of pending proceedings and the preservation of existing rights and liabilities was unaffected.

2

Obtaining relief under the 1931 Act and under the 1980 Act requires-certain procedural steps, one being of considerable significance - the service of notice of intention to claim relief under the Act, such notice to be served at different times, depending upon the nature of the expiring tenancy. In the instant case, under the 1931 Act, the notice had to be served not less than 3 months before the termination of the tenancy. No such notice was served then or at any time until after the repeal of the 1931 Act, when an appropriate notice under s. 20 of the 1980 Act was served on the 25th November 1981. The present application is under s. 83 of the 1980 Act which provides:-

"Where a person fails to do any act or thing in the time provided for by or under this Act, the Court may, on such terms as it thinks proper (and shall unless satisfied that injustice would be caused) extend the time where it is shown that the failure was occasioned by disability, mistake, absence from the State, inability to obtain requisite information or any other reasonable cause."

3

This section corresponds with s. 45 of the 1931 Act which provided as follows:-

"Whereby or under this Part or any of the foregoing Parts of this Act a period is fixed for the doing of any act or thing, the Court may, either before or after the expiration of such period, extend such period upon such terms as the Court thinks proper."

4

The applicants submit that s. 83 is a more liberal extension section than s. 45. It might well be argued that the detailing in s. 83 of the cause of failure restricts rather than expands the availability of the relief sought. An examination of the decided cases, to which I have been referred, and a list of which is appended here-under, would appear to show a later readiness to indulge the careless and the inattentive as well as the ignorant rather than was the case in earlier years. The principle being applied under s. 45 does not appear to me to have varied betweenO'Neill v. Carthy (1937) and Wigoder v. Moran(1977) - the Court should grant the relief when it would be just to do so, a principle not restricted, I think, to the law of landlord and tenant.

5

S. 83 of the 1980 Act may be said to have altered the emphasis. It prescribes that where it is shown that the failure was occasioned by disability, mistake, absence from the State, inability to obtain requisite information or any other reasonable cause, the Courtshall unless satisfied that injustice would be caused extend the time.

6

The applicants here seek the relief wherever it may be obtained - either under s. 45 of the 1931 Act or s. 83 of the 1980 Act. The main thrust of the applicants' contention, as deposed to on affidavit, is that "the applicant company believed at all times that the applicant company were entitled to a new lease and remained on in possession during the currency of negotiations which they believed were being carried out on their behalf by Messrs Dickson & McNulty(their solicitors) and at no time between consulting Messrs Dickson & McNulty by letter dated the 19th October 1977 and a trespass by the respondent was there any concern on the part of the applicant company that there would be any difficulties in respect of their possession of the said premises. I say and believe that if any tenancy is granted the result would be no more or less than what was anticipated by the respondent or her predecessors in title and that if the applicants are prevented from applying for a new tenancy they will suffer heavy economic loss together with the economic loss already suffered to date by virtue of the forcible re-entry as aforesaid they having built up a goodwill while the respondent will be enriched by the unexpected windfall of vacant possession and to the extent of the improvements and erection of buildings carried out by the applicant company."

7

(In passing, I note that the applicant company did not avail of the "improvement" provisions of the 1931 Act). Under the 1931 Act, the due time for service of notice was not later than the 31st January 1976; the applicants did nothing until the 23rd November 1976 when Mr. Kevin Duddy, their accountant, called to the respondent "regarding the renewal of the lease of Moville Depot and she informed me that she had to confer with her sons before coming to a decision relating thereto". (Mr. Duddy's affidavit). Nothing further happened until the respondent wrote to Mr. Duddy on the 10th May 1977 asking for particulars of the rental; he called to her home on two occasions and wrote on the 8th August 1977 referring to the expiration of the lease and the anxiety of the applicants to have the lease renewed and giving particulars of the rent. On the 18th October 1977 the respondent telephoned him and told him that she would not renew the lease. Mr. Duddy told his superiors who handed the matter over to their solicitors - in subsequent correspondence both the solicitors and the General Manager of the applicant company questioned whether or not "the game is worth the candle" meaning whether or not it was worth embarking on expensive legal proceedings to get a renewal of a lease of property which the applicants might not really require. Nothing further happened until, coincident with attending the District Court in Moville in June 1978, Mr. Dickson wrote to Mr. McCay, the General Manager, about the Moville Depot; nothing further, until the respondent telephoned Mr. Dickson on the 3rd September 1980 "to sort out the position regarding this property for her". Again on the 20th October 1980, by which time the 1931 Act had been repealed, it was the respondent who moved again and telephoned Mr. Dickson stating "she would like you to write or telephone her as soon as you have any news for her as she is anxious about the matter". Mr. Dickson did, indeed, write to Mr. McCay after he took these telephone calls but, apparently, did not find it necessary or desirable to write to Mrs. Gillen, the respondent, who, rather understandably, sought to recover her property, albeit by direct action in putting up a gate to keep the applicants out of the Depot, which she did in April 1981. It was not until November 1981 that any notice was served although, in the interval, other proceedings had been brought in the Circuit Court.

8

Counsel for the applicants has contended that the applicants remained in occupation within the meaning of s. 29 of the Act of 1980, that s. 20, subs. 2(d) of that Act, effectively, gave until the 8th March 1981, the specified period of six months for the applicants to serve notice of intention to claim relief under the new statute and that, negotiations having begun between Mr. Duddy and Mrs. Gillen, once the matter had been handed over to the applicants' solicitors, as it was in October 1977, that the failure of the solicitors to pursue the matter more actively or to produce a satisfactory result in some form was not to be visited upon the applicants. The relief is sought either as a preserved right remaining under s. 45 of the Act of 1931 or by the combined operation of s. 29 and s. 80 of the Act of 1980.

9

I reject the argument. under the 1931 Act, which was in full life and vigour at the time of the expiration of the term granted by the lease, the notice of intention to claim relief should have been served three months before its expiration; the applicants did nothing until November 1976 and then, indeed, little enough. They were stirred into action, not of their own volition, but by a query from Mrs. Gillen; they responded, not to Mrs. Gillen, but to their solicitors who copied their example by doing nothing until a chance visit by Mr. Dickson to Moville. Again neither they nor their solicitors did anything for over two years and it is likely enough that but for Mrs.Gillen's understandable impatience and positive action in seeking to enter upon her own property, they might still be doing nothing. The Act of 1931 ceased to exist as of the 8th September 1980. Suppose that some time in 1980, the applicants had brought a like application under s. 45 - I question its chances of success; are they now to be given, in every sense of the phrase, a new lease of life by the coming into force of the Act of 1980. I do not find it necessary to express a view as to the argument advanced under s. 29 of the Act of 1980; I am content to judge the matter on the basis that that argument was well founded. Be it so, however, the facts here are far...

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