Lowe v Gilchrist

• Jurisdiction: Ireland
• Judgment Date: 29 July 1936
• Date: 29 July 1936
• Court: High Court (Irish Free State)

High Court

Lowe v. Gilchrist

RACHEL LOWE

and

MARGARET GILCHRIST (1)

Landlord and tenant - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 - Rent said in excess of amount permitted by the Act - Excess recoverable by virtue of the Act - Premium paid as a condition of the granting of the tenancy - Made recoverable by the Act - Action to recover excess payments of rent and the premium paid - Whether action brought upon the statute - Period of limitation - Statutes of Limitation - Common Law Procedure Amendment Act (Ireland), 1853 (16 & 17 Vict. c. 113),sect. 20 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 12; sect. 13, sub-sect. 1; sect. 15, sub-sect. 1.

Appeal from the Circuit Court.

The plaintiff's claim, as indorsed upon her Civil Bill, was as follows:—"The plaintiff's claim is for the sum of £111 13s. 2d., money had and received by the defendant to the use of the plaintiff, being money paid by the plaintiff as tenant of 45 Fontenoy Street, Dublin, to the defendant as landlord, which is recoverable under the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 and 1926, and on foot of an account stated and settled between the plaintiff and the defendant, which the defendant promised to pay, full particulars of which were furnished to the defendant's solicitor on the 4th day of March, 1933."

The particulars referred to in the Civil Bill set out the amount claimed as rent paid in excess between January 18th, 1926, and January 18th, 1933, together with a sum

of £20 0s. 0d., premium, or "key money," paid, and the costs of an application to fix the standard rent in the District Court.

The defence, as amended by leave of the Circuit Court Judge, was as follows:—

"(1.) The defendant admits that she owes the plaintiff the sum of £50 7s. 1d., being overpayments of rent made by the plaintiff to the defendant in respect of the premises, 45 Fontenoy Street, Dublin, between the periods, January 18th, 1926, and January 18th, 1933, after deducting all the necessary deductions, as set out in the rent account furnished by the plaintiff and being exhibit 'L' of the affidavit of the plaintiff sworn on the 29th day of June, 1933.

(2.) The defendant counterclaims for rent due by the plaintiff to the defendant from the 18th January, 1933, to the date of judgment herein, at £3 3s. 3d. per month.

(3.) The defendant denies that she owes the plaintiff the sum of £20 as claimed by the plaintiff as 'key money,' or in respect of a 'present,' as alleged by the plaintiff. The defendant was paid the sum of £20 by the plaintiff for the purpose of defraying some of the expenses of carrying out the necessary repairs to the premises, 45 Fontenoy Street, at the plaintiff's request, and for her benefit. The defendant relies on the provisions of the Statutes of Limitations."

It was stated in evidence in the Circuit Court that an application had been made to the District Court to fix the amount of the standard rent of the premises. The rent based on that standard rent, together with the increases permitted by the Acts was below that paid by the plaintiff, and the amount of the excess of rent paid by the plaintiff was settled between the plaintiff and defendant at a certain figure.

Two questions were in dispute before the Circuit Court Judge (Judge Davitt):—1, whether a sum of £20 paid by the plaintiff at the time of the letting was a "premium"within the meaning of sect. 13, sub-sect. 1, of the Increase of Rent and Mortgage (Restrictions) Act, 1923 (No. 19 of 1923); and 2, whether the cause of action was upon a specialty created by statute, or upon a simple contract, or for a penalty.

The Circuit Court Judge decided as to 1, that the £20 0s. 0d. paid was a premium; and, as to 2, he said:—"Judge Devitt has decided that the appropriate period of limitation is six years, and Judge Shannon that it is twenty years. I shall follow my brother Shannon. This matter was very carefully gone into by Judge Shannon and is the subject of a reserved decision." He accordingly made a decree for £57 0s. 3d. with costs. The defendant appealed.

The tenant of a dwelling house, to which the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, applied, brought an action against her landlord 1, for the recovery of sums paid by her as rent in excess of the amount permitted by the Act—which sums are, by sect. 12 of the Act, made recoverable from the landlord by the tenant, and 2, for the recovery of a sum paid by her as a premium, on the granting of the tenancy—which sum is, by sect. 13 of the Act, recoverable by the person by whom it is made.

Held, that the action, so far as it related to the claim for the repayment of the amount of the premium, did not come within the scope of that portion of sect. 20 of the Common Law Procedure Amendment Act (Ireland), 1853, which applied to actions brought to recover "penalties, damages, or sums of money given to the party grieved, by any statute," since the words "damages or sums of money" must be construed as meaning damages or sums of money of a penal nature, which the premium paid was not. Accordingly the two years' limit of time within which such an action must be brought, imposed by that section, did not apply.

Thomson v. Lord Clanmorris, [1900] 1 Ch. 718, applied.

Held further, that the action, as regards both claims, was one brought upon the statute, the period of limitation for which was twenty years.

Cork and Bandon Railway Co. v. Goode, 13 C. B. 826, applied; Aylottv. West Ham Corporation, [1927] 1 Ch. 30, and Gutsell v. Reeve, [1936] 1 K. B. 272, distinguished.

Cur. adv. vult.

Sullivan P. :—

This is an appeal in an action brought by the plaintiff to recover "the sum of £111 13s. 2d., money had and received by the defendant to the use of the plaintiff, being money paid by the plaintiff as tenant of 45 Fontenoy Street, Dublin, to the defendant as landlord, which is recoverable under the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 and 1926; and on foot of an account stated and settled between the plaintiff and the defendant, which the defendant promised to pay."

At the hearing of the action by the Circuit Judge it was agreed that the house, 45 Fontenoy Street, is a dwellinghouse to which the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923 and 1926, applied; that the plaintiff became tenant thereof to the defendant on the 18th January, 1926, and from that time up to the 18th January, 1933, paid each year to the defendant on account of rent a sum in excess of the rent for which she was liable under those Acts.

It was proved that, in addition to the rent, the plaintiff had paid to the defendant when the agreement of tenancy was signed a sum of £20. The only question of fact in issue at the trial was whether this sum was a premium paid as a condition of the grant of the tenancy or was a loan.

The Circuit Judge held that it was paid as a condition of the grant of the tenancy.

On the facts so admitted and proved the plaintiff was,prima facie, entitled to recover from the defendant:— (1) the sums paid in excess of the legal rent, and (2), the premium paid as a...