Pelly, Revenue Commissioners ate (Amendment) Bill, 1940, and Art. 26 of the Constitution

• Jurisdiction: Ireland
• Judgment Date: 16 October 1940
• Date: 16 October 1940
• Court: Supreme Court

Supreme Court.

Parkinson v. O'Malley

WILLIAM PARKINSON

Applicant

and

ANTHONY O'MALLEY, Respondent (1)

Landlord and Tenant - Rent restriction - Letting of dwellinghouse at rent which included payments in respect of the use of furniture - Apportionment as between rent attributable to dwellinghouse and payments in respect of use of furniture - Rent apportioned by agreement - Application subsequently made to Court for apportionment - Whether duty of Court to apportion notwithstanding agreement - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), s. 3, sub-ss. 1 and 3.

Case Stated by the President of the High Court pursuant to s. 38, sub-s. 3, of the Courts of Justice Act, 1936, at the request of counsel for the respondent, for the determination of a question of law arising on an appeal from the Circuit Court to the High Court.

The Case Stated was as follows:—

"The Circuit Court Judge (Judge Shannon) on the 14th April, 1939, dismissed an application of the applicant for an order under the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923-1930, to determine the standard rent of the dwellinghouse, No. 6 Tyrconnell Road, Inchicore, in the City of Dublin, and that, for that purpose, the rent at which the premises were let be apportioned as between payments for the use of furniture and the rent of the dwellinghouse.

The dwellinghouse in respect of which the application is made is held by the applicant under an agreement in writing, dated the 29th July, 1932. As will be seen, the rent is

£1 10s. 0d. per week, 'whereof,' the agreement states, 15s. 0d. shall be in respect of the use of the furniture and the other half in respect of the premises.

The evidence of the applicant was that the only furniture in the premises at the date of the letting was five blinds, 2 wicker chairs and one table, of a total value of £1 6d. 0d. and that at the time of the hearing it was value for 16s.

The respondent gave evidence that the furniture consisted of 6 blinds, 6 chairs, 1 table and new linoleum on the hall and four rooms.

In view of the submission on behalf of the respondent mentioned below no evidence of the value of the furniture was tendered.

I did not find a figure as to the value of the furniture. Even if I accept the respondent's evidence it could not in my view exceed £6.

It was submitted on behalf of the applicant that, notwithstanding the terms of the agreement, it is open to the Court to apportion the rent, with a view to deciding whether the dwellinghouse is one to which the Act applies. It was contended on behalf of the respondent that the applicant is bound by the figures as to apportionment contained in the agreement.

I find as a fact that the agreement was bona fide in the sense that the applicant understood the meaning of it. If it be open to me to apportion the rent it is clear that I must find that the portion of such rent attributable to the dwellinghouse alone equals or exceeds three-quarters of the rent.

The question for the determination of the Supreme Court is whether, despite the fact that the parties have agreed as to the apportionment of rent between payments in respect of use of furniture and payments attributable to the dwellinghouse alone, it is open to the Court to ignore the apportionment so made and make an apportionment with a view to determining whether the premises constitute, by virtue of s. 3, s.-s. 1, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, a dwellinghouse to which the Increase of Rent and Mortgage Interest (Restrictions) Acts, 1923-1930, apply."

The proviso to s. 3, sub-s. 1, of the Increase of Rent and Mortgage Interest...