Moffat v Frisby and Good

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 20 March 2007
• Neutral Citation: [2007] IEHC 140
• Court: High Court
• Docket Number: [2006 No. 155SP]
• Date: 20 March 2007

Moffat v Frisby & Good

IN THE MATTER OF THE ARBITRATION ACT, 1954

BETWEEN/

ANDREW MOFFAT

PLAINTIFF

AND

NOEL FRISBY AND PAUL GOOD

DEFENDANTS

[2007] IEHC 140

155 SP/2006

THE HIGH COURT

LANDLORD AND TENANT

Lease

Remedies - Forfeiture - Ejectment proceedings - Whether issue of notice of forfeiture by landlord precluded him from relying on terms of lease - Whether waiver of forfeiture notice can retrospectively allow landlord to rely on terms of lease - GS Fashions Ltd v B & Q plc [1995] 1 WLR 1088 and Jones v Carter (1846) 15 M & W 718 followed - Plaintiff granted relief (2006/155SP - Laffoy J - 10/3/2007) [2007] IEHC 140

The First Defendant was the Plaintiff's landlord. Despite negotiations, they could not agree a revised rent. The First Defendant issued ejectment proceedings in the Circuit Court. Subsequently, the First Defendant's agent applied to Law Society to appoint an arbitrator pursuant to an agreement in the rent review clause. The Plaintiff claimed an order setting aside the appointment of the Second Defendant as arbitrator under the Arbitration Act 1954. The core issue was whether, given that the First Defendant asserted that the lease was forfeited and that the Plaintiff was not entitled to relief against forfeiture and proceedings were pending in the Circuit Court to enforce the contended for forfeiture, the First Defendant was entitled to operate the rent review clause.

Held by Laffoy J. in declaring the appointment of the Second Defendant as arbitrator null and void that when a lessor served a forfeiture notice and sought to enforce it by ejectment proceedings the lessor was not entitled to treat the terms of the lease as binding the lessee. When the First Defendant applied to appoint an arbitrator pursuant to the provisions of the lease, the lease was already the subject of three forfeiture notices and ejectment proceedings and in those circumstances the First Defendant was not entitled to invoke the rent revision provision of the lease or seek to have an arbitrator appointment.

Reporter: R.W.

ARBITRATION ACT 1954

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARA 24.22

DENDY v EVANS 1910 1 KB 263

CONVEYANCING ACT 1881 S14(2)

DRISCOLL v CHURCH CMRS FOR ENGLAND 1957 1 QB 330 1956 3 WLR 996 1956 3 AER 802

MEADOWS v CLERICAL MEDICAL & GENERAL LIFE ASSURANCE SOCIETY 1981 CH 70 1980 2 WLR 639 1980 1 AER 454

MARYLAND ESTATES LTD v BAR-JOSEPH & ANOR 1998 3 AER 193 1999 1 WLR 83

LAW REFORM CMSN CONSULTATION PAPER ON GENERAL LAW OF LANDLORD & TENANT CP 28-2003

O'REILLY v GLEESON 1975 IR 258

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARA 24.25

RAINEY BROS LTD v KEARNEY 1990 NI 18

GS FASHIONS LTD v B & Q PLC & ORS 1995 4 AER 899 1995 1 WLR 1088

JONES v CARTER 1846 15 M & W 718 153 ER 1040

WYLIE & FARRELL LANDLORD & TENANT LAW 2ED 1998 PARA 27.17

1 Judgment of Miss Justice Laffoy delivered on 20th March, 2007.

Factual background

2 By a lease dated 16th August, 1999 made between Green Property Plc of the one part and the plaintiff of the other part (the Lease) Unit No. 22C, being part of Waterford Shopping Centre situate as Lisduggan, Waterford, was demised to the plaintiff for the term of twenty years from and including 1st July, 1999 at the initial rent, after the first six months, of €15,000 per annum. The lease contained provision for the review of the rent at five-yearly intervals. The first review period commenced on 1st July, 2004. The rent review clause provided for measures whereby the revised rent for a review period might be agreed between the lessor and the lessee. It also provided that, in default of agreement, the ascertainment of the "deemed market rental value" should be referred to the arbitration of a single arbitrator. The mechanism for appointment of the arbitrator provided for in default of agreement between the lessor and the lessee was that he or she was to be nominated on the joint application of the lessor and the lessee, or, if either of them should neglect within seven days on being requested so to do to concur in such application, then on the sole application of the other, by the chairman for the time being or acting chairman of the Society of Chartered Surveyors in Ireland (the Society).

3 By letter dated 30th June, 2003 from A & L Goodbody, solicitors, the plaintiff was notified that Waterford Shopping Centre had been sold to the first defendant, who thereby became entitled to the reversion on the Lease and the plaintiff's landlord.

4 Hamilton Osborne King (HOK), Estate Agents, Auctioneers and Valuers, acted for the first defendant in connection with the first rent review of Unit No. 22C. The rent review procedure in accordance with the lease was set in train by a Rent Notice served by HOK on the plaintiff on 13th January, 2004. The Rent Notice referred to the Lease and suggested that the landlord's interest was vested in "Frisby Construction". This error was repeated in subsequent notices, applications and correspondence. The plaintiff has characterised the error as a "false misrepresentation" and has submitted that it somehow adversely impacted on the efficacy of what the various documents were intended to achieve. While the first defendant's agents should have described him properly in the documents required under the rent review clause in the Lease, the fact is that the plaintiff has at all material times known the true identity of his landlord and that his landlord is the first defendant. In the circumstances, I consider the submission made by the plaintiff as being specious.

5 Through 2004 and 2005 despite negotiations the plaintiff and the first defendant's agents did not succeed in agreeing the revised rent. At the beginning of September, 2005 HOK asked the plaintiff to concur in an application to the Society to have an arbitrator appointed. On 20th September, 2005 the first defendant issued ejectment proceedings on title in the Circuit Court (South Eastern Circuit, County Waterford) (Record No. 534/05) against the plaintiff claiming, inter alia, to recover possession of Unit No. 22C. On 26th September, 2005 the plaintiff wrote to HOK stating that this effectively stopped the review until such time as the Circuit Court proceedings were finalised.

6 On 10th November, 2005 HOK applied to the Society to appoint an arbitrator. On the application form the name of the lessor was given as "Frisby Construction". The plaintiff has taken issue in relation to that description and he also has taken issue with the negative response to a question on the application form querying whether there were any issues, apart from the amount of the rent, which were in dispute and were likely to be raised. The existence of the ejectment proceedings was not disclosed. By letter dated 15th November, 2005 the Arbitration Officer of the Society wrote to the plaintiff, sending him a copy of the application form as submitted by HOK and enclosing a form for him to complete, which, if he had completed it, would have given him the opportunity to name individuals he considered to be unsuitable for appointment as arbitrator because of conflict of interest. The plaintiff did not return the form, but he contacted the office of the Arbitration Officer by telephone. He has averred that, in her absence, he left a detailed message on her voice mail advising her that the title was in dispute, that ejectment proceedings were before the Circuit Court and that, therefore, he was not in a legal position to proceed with an arbitration.

7 On 23rd November, 2005 the President of the Society appointed the second named defendant as arbitrator to determine the revised rent on Unit No. 22C in accordance with the provisions of the Lease. Subsequent to his appointment the second defendant endeavoured to carry out his duties as arbitrator. The plaintiff resisted those attempts, contending that his appointment was void because of the misdescription of the lessor and relying also on the existence of the ejectment proceedings. Eventually, after the second defendant had directed that the matter be dealt with by way of oral hearing, the plaintiff initiated these proceedings.

The proceedings

8 In these proceedings, which were initiated by special summons which issued on 20th April, 2006, the plaintiff claims the following reliefs:

9 (1) an order setting aside the appointment of the second defendant as arbitrator under the Arbitration Act, 1954 (the Act of 1954); and

10 (2) an injunction restraining the first defendant from making further application to the Society in respect of Unit No. 22C pending the trial of -

11 (a) the first defendant's ejectment proceedings (Record No. 534/05), and

12 (b) proceedings initiated by the plaintiff on 12th May, 2005 in the Circuit Court (South Eastern Circuit, County Waterford, Record No. 242/05) by way of Landlord and Tenant Civil Bill, in which, as amended pursuant to an order of the Circuit Court made on 12th October, 2005, the plaintiff claimed, inter alia, relief against forfeiture, the first defendant having, at the time of the amendment, served three forfeiture notices dated 15th March, 2005, 12th May, 2005 and 29th July, 2005 respectively.

13 The grounds on which the plaintiff seeks the reliefs sought in the special summons, insofar as they can be gleaned from the special summons, are that the first defendant's contention that the Lease has been validly forfeited and no longer exists precludes him from relying on the lease and, in particular, on the rent review provision and the alleged "false misrepresentations" made to the Society in the first defendant's agent's application for the appointment of an arbitrator. In view of what I have stated earlier in relation to the misdescription of the lessor, it will be clear that I consider the latter ground to be lacking in merit and I do not...