Londonderry & Lough Swilly Railway Company v Gillen


1984 WJSC-CC 2378





Subject Headings:

LANDLORD & TENANT: new tenancy

PRACTICE: time limit


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 The 1931 Act was wholly repealed by the Landlord and Tenant (Amendment) Act, 1980, which came into force, by Ministerial Order, on the 8th September 1980.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.


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."


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."


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.


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.


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."


(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...

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