RGRE Grafton Ltd v Bewley's Café Grafton Street Ltd and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello,Ms. Justice Máire Whelan
• Judgment Date: 31 July 2024
• Neutral Citation: [2024] IECA 199
• Docket Number: Court of Appeal Record Number: 2023/157
• Court: Court of Appeal (Ireland)

Between/

RGRE Grafton Limited

Plaintiff/Appellant

and

Bewley's Café Grafton Street Limited & Bewley's Limited

Defendants/Respondents

[2024] IECA 199

Whelan J.

Costello J.

Pilkington J.

Court of Appeal Record Number: 2023/157

High Court Record Number: [2023] IEHC 25

THE COURT OF APPEAL

CIVIL

Landlord’s fixtures – Findings of fact – Ownership – Parties claiming ownership of stained glass windows – Whether the stained glass windows were tenant’s fixtures

Facts: In Bewley’s Café on Grafton Street in Dublin there were six stained glass windows. The appellant, RGRE Grafton Ltd, who held the landlord’s interest in the premises, said that it was the owner of all six windows. The respondents, Bewley’s Café Grafton Street Ltd and Bewley’s Ltd, said that they were tenant’s fixtures and thus were the property of the first respondent who held the tenant’s interest in the premises and belonged to the second respondent pursuant to a Deed of Assignment from the first to the second respondent. The High Court (McDonald J) held that that appellant was the owner of four of the windows on the western wall (the Four Orders windows) and the second respondent was the owner of the remaining two (the Swan Yard windows). The appellant appealed to the Court of Appeal from the order in relation to the Swan Yard windows and the respondents cross-appealed in relation to the Four Orders windows. The appellant claimed that the works comprised windows which formed part of the leased premises and on that basis they were, as a matter of law, the property of the landlord. The respondents contended that the works were not windows and said that they were decorative and ornamental panels and were not part of the fabric of the building. They maintained that the works had been in the ownership of the tenant at all material times and that they were tenant’s fixtures and that, accordingly, they could not be the property of the landlord. They said that a minute of the board of the first respondent dated 9 March 1928 showed that it paid for the windows which reinforced the respondents’ case that they were tenant’s fixtures and that the second respondent was the owner of all six works.

Held by Costello J that the trial judge was correct to conclude that the Four Orders windows were windows as they were part and parcel of the premises; they weathered, lit and ventilated the café. Costello J held that in law, they were and remained the property of the original landlord and his successors in title; they passed under the sale in 1987 as part and parcel of the building and the appellant, as the successor in title was the owner of the Four Orders windows. Costello J held that the trial judge erred in concluding that the appellant had failed to prove on the balance of probabilities that the Swan Yard windows also were part and parcel of the building and in concluding that they were tenant’s fixtures and therefore the property of the second respondent on foot of an assignment from the first respondent. In Costello J’s judgment the appellant proved on the balance of probabilities, having regard to the totality of the evidence, that the Swan Yard works were part and parcel of the premises and thus were the property of the original landlord and his successors in title. Costello J held that the trial judge’s conclusion was based upon impermissible speculation which must be rejected in light of the entirety of the evidence and the inferences which it was reasonable to draw from such evidence.

Costello J allowed the appeal of the appellant in relation to the trial judge’s ruling as to the ownership of the Swan Yard works and rejected the cross-appeal of the respondents in relation to the trial judge’s conclusions as to the ownership of the Four Orders work.

Appeal allowed.

[approved]

[no redaction needed]

JUDGMENT of Ms. Justice Costello delivered on the 31 ^st day of July 2024

Introduction

1 . In Bewley's Café on Grafton Street in Dublin there are six stained glass windows which were created by the well-known stained glass artist Harry Clarke in 1928 1. The issue in this appeal is: who owns the Harry Clarke windows? The appellant, who holds the landlord's

interest in the premises, says that it is the owner of all six windows. The respondents say that they were tenant's fixtures and thus were the property of the first named respondent who holds the tenant's interest in the premises and now belong to the second named respondent pursuant to a Deed of Assignment from the first to the second named respondent. The High Court (McDonald J.) held that that appellant was the owner of four of the windows on the western wall, referred to as the Four Orders windows, as they depicted four orders of classical architecture, and the second named respondent was the owner of the remaining two, which were referred to as the Swan Yard windows, as they were set in the openings which overlooked this yard. The appellant has appealed the order in relation to the two Swan Yard windows and the respondents have cross-appealed in relation to the Four Orders windows

2 . The central plank of the appellant's claim is that the works comprise windows which form part of the leased premises and on that basis they are, as a matter of law, the property of the landlord.

3 . The respondents contend that the works are not windows and say that they are decorative and ornamental panels and are not part of the fabric of the building. They maintain that the works have been in the ownership of the tenant at all material times and that they are tenant's fixtures and that, accordingly, they cannot be the property of the landlord. They contend that there were sashes glazed with clear glass in the window frames which functioned as the windows of the building and the sashes containing the stained glass panels were mounted in frames set immediately inside in what was described as a double fenestration system. They say that a minute of the board of the first named respondent dated 9 March 1928 shows that it paid for the Harry Clarke windows which reinforces the respondents' case that they are tenant's fixtures and that the second named respondent is now the owner of all six works.

4 . The contemporary evidence was incomplete, sparse and frequently inconclusive. Expert witnesses on both sides, and in turn, the judge, were required to infer what the original arrangement may have been from this evidence and the evidence from the state of the building and the windows in the 1970s, 1980s and 1990s when it was accepted that the original arrangement had been altered to a considerable but contested degree. It thus is vital to distinguish between direct evidence, accepted common fact, and inferences from direct evidence or commonly agreed fact in determining the issues presenting in this appeal.

5 . There was little dispute between the parties as to the applicable legal principles, which I shall consider later in this judgment. During the appeal the debate largely turned upon the evidence which could prove or disprove the theories of the respective parties as to the original configuration of the building and the approach of the judge to this evidence.

The facts

6 . The facts have been set out in very considerable detail in the judgement of the High Court and I do not propose to repeat McDonald J.'s excellent statement of the facts and description of the café and the works in dispute. This judgment should be read in conjunction with that of the High Court.

7 . The major difficulty in this case is the incomplete nature of the evidence and the resulting difficulty in resolving the legal issues presenting in the case, a problem of which the trial judge was acutely aware. Of necessity the High Court, and this Court on appeal, is required to draw inferences from this incomplete picture. It need not be emphasised that great care must be taken in such a task.

8 . On appeal, the appellant focused its case to the issue whether the works were windows and thus part of the fabric of the building. If they were originally windows, it said, they could not have been tenant's fixtures. If they were not originally tenant's fixtures, the changes which occurred in the café in the intervening years did not transform them into tenant's fixtures. The respondents' case in the High Court was that the works were installed as and remain to this day, tenant's fixtures.

9 . I therefore propose to start by considering the evidence regarding the construction of the café, such contemporary documents as exist, the lease of the café and the subsequent changes to the café with a view to determining what the evidence available establishes and what inferences may be drawn from this evidence as each side's case turns upon what they contend was the legal position when the windows/works were placed in the building.

Assembling the site and constructing the building

10 . Between 14 December 1925 and 28 July 1986 Ernest Bewley acquired by assignment the leasehold interests in the premises at 78 and 79 Grafton Street and 2, 3 and 4 Johnson's Court. He thus established a site upon which he commissioned the construction of the building of the café. As was observed by the High Court, and not contested by the parties, it appears to have also been Ernest Bewley's intention to let the café premises to Bewley's Oriental Cafés Ltd., a company then owned by members of the Bewley family. At the time Ernest Bewley was not only the first landlord, but he was also a director and chairman of Bewley's Oriental Cafés Ltd. (Since that time it has undergone a change of name and of ownership and is now known as Bewley's Café Grafton Street Ltd., the first named respondent).

11 . It is common case that the premises was developed by Ernest Bewley. As McDonald J. makes clear, he intended that the café would be comparable to contemporary continental oriental cafés. The Grafton Street façade is very...