Wigoder Ltd v Moran

• Jurisdiction: Ireland
• Judge: KENNYJ.:,HENCHY J.
• Judgment Date: 21 January 1977
• Neutral Citation: 1977 WJSC-SC 1460
• Date: 21 January 1977
• Docket Number: (125/1976),[S.C. No. 125 of 1976]
• Court: Supreme Court

1977 WJSC-SC 1460

THE SUPREME COURT

HENCHY J.

KENNY J.

PARKE J.

(125/1976)

WIGODER AND COMPANY v. MORAN

CASE STATED HIGH-7.7.76

H. WIGODER & CO.LTD.

v.

JOSEPH MORAN AND KAYZER LEOPOLD

1 JUDGMENT OF HENCHY J.DELIVERED THE 21st JANUARY 1977

2 The first question put by Finlay P. in this case stated is whether in hearing this appeal from the order of the Circuit Court he is entitled to substitute his discretion for that of the Circuit Judge. In my opinion he is. It is an appeal by way of a rehearing, under s. 37(2) of the Courts of Justice Act, 1936. New evidence was in fact heard by consent. So the material on which he is required to exercise his discretion is different from that before the Circuit Judge. Not alone is he entitled but he is bound to exercise his discretion on the basis of the whole of the relevant evidence adduced at the rehearing before him.

3 But even if the rehearing were based on the same affidavit evidence as was before the Circuit Judge, the High Court Judge hearing the appeal would be entitled to substitute his own discretion. Formerly the law was stated to be that in such cases the judge of appeal could interfere with the trial judge's exercise of discretion only if it was wrong in principle. That no longerrepresents the law. Modern decisions show that the judge of appeal may intervene if he is satisfied that the trial judge's exercise of discretion was wrong-for example, because inadequate or excessive consideration was given to particular matters. See Ward v.James 1966 1 Q.B. 273, Vella v. Morelli 1968 I.R. 11, Re O.(Infants) 1971 ch. 748. Where all the necessary primary facts are admitted, or have been found by the judge of first instances, the court of appeal is no less qualified than he to exercise the requisite discretion on the basis of the facts so the found or admitted.

4 The second question in the case stated is whether, if the tenant company is found to have taken all reasonable steps to protect its interest by giving proper instructions to its solicitor, but if the solicitor, because of a bonafide mistake of law, failed to do so, the discretion as to extension of time should be exercised in favour of the tenantcompany.

5 Before dealing with this question it is necessary to refer to the relevant circumstances.

6 H.Wigoder & Co.Ltd. ("the tenant company") runs a chain of shops in Dublin. One of the shops is at 59 Thomas St. The tenant company has carried on business there since 1964, having got a lease of the shop premises in that year for oneyear at the rent of £500 from Sachs Estates Ltd. ("the landlord company"). When the lease for one year expired, the tenant company remained on, paying the rent reserved by the lease. It thus became a tenant from year to year.

7 The interest of the landlord company itself in the premises was only leasehold. It held under a lease of 1923 which was due to expire on the 29th September 1973. In July 1971 the fee simple estate - and therefore the reversion under the 1923 lease - was purchased by Joseph Moran and Kayser Leopold ("the freeholders").

8 The shop premises was a tenant under the landlord and Tenant Act, 1931, and by 1973 the tenant company had acquired a business equity to apply for a new tenancy. The difficulty was that the leasehold interest of the landlord company was due to expire on the 29th September 1973, and in that event the tenant company's tenancy from year to year would come to an abrupt end. To protect its right to a new tenancy under the landlord and Tenant Act, 1931, it would have been necessary for it to serve a notice of intention to claim relief not less than three months before the 29th September, 1973: see s. 24(2)(b) of the 1931 Act.

9 On the 16th March 1973 the tenant company's solicitor wrote to the landlord company's solicitors. The oral evidence to theeffect that the tenant company's solicitor had been instructed that the landlord company's lease would run out in the following September and that he should take all steps necessary to protect the tenant company's interest is borne out by the following passage in that letter:

"I understand that your client's lease will come to an end in September of this year. I would appreciate if you could give me any information as to what the position would be at that time. Have your clients a right to a new lease? Any information on the matter would beappreciated."

10 The landlord company's solicitors replied on the 12th April saying that his client's lease would expire in the following September, after which the landlord company would have no further interest. They added the following comment:

11 "It appears to us that your client would be entitled to a new lease of their tenancy should their tenancy be determined by the superior landlord".

12 That statement was incorrect and misleading. The tenant company's interest would expire - and did expire - with the expiration on the 29th September 1973 of the lease to the the landlord company. A notice of intention to claim a newtenancy should have been served by the tenant company before the 29th June 1973. Such notice was not served because the tenant company's solicitor, wrongly advised by counsel, considered that the tenant company's interest, being that of a tenant from year to year, could not be brought to an end without a six months notice to quit.

13 It seems clear from the evidence that the tenant company's managing director considered that there was nothing further for him to do in regard to the service of the appropriate notice after he had instructed his solicitor in March 1973.

14 Unfortunately, because of the solicitor's misinterpretation of the law, the necessary notice of the intention to claim relief was not served. It should have been served before the 29th June 1973. On the 30th October 1973 the freeholders" solicitor wrote claiming possession. It was not until the 21st January 1974 that a notice of motion was issued on behalf of the tenant company seeking an order extending the time for serving the appropriate notice.

15 S. 45 of the landlord and Tenant Act, 1931, allows a period of time fixed by the statue for doing any act to be extended, but it is silent as to the circumstances in which such an order may be made. The court must therefore exercise its discretion on the basis of what is just, and reasonable in the circumstancesof the case. A mistake on the part of a legal advisor may be no impediment to the grant of an extension of time (see per Sir Wilfred Greene M.R. in Gatti v. Shoosmith 1939 3 All E.R. 916.), but it should be treated otherwise if the grant of an extension of time would work an injustice on the other party - for instance, if the landlord has been misled into dealing with the property in the bonafide belief that the tenant's inactivity was not due to error, and if it would be unfair or oppressive to require him to undo what he has committed himself to as a result of the tenant's failure to serve the notice.

16 Where a question arises as to the grant of an extension of time in which to serve notice of intention to claim relief, there is no single rule or principle on which the court's discretion under s. 45 of the 1931 Act is to be exercised. Where discretion is given in such wide and general terms, all that can be done is to indicate the chief considerations on which the discretion might be exercised: see Blunt v. Blunt 1943 A.C. 517 at 525; Ward v. James 1966 1 Q.B. 273 at 295; Bickel v. Duke of Devonshire 1976 3 ALL E.R. 801 at 805. That is because of the wide variety of circumstances in which it will be necessary to apply for an extension of time. Each case must be decided on its own circumstances, and the improbability of any of two casesfallingunder the same set of circumstances makes it unlikely that the decision in any one case will be anything more than a rough guide to the decision in another.

17 S. 24(1) of the Act stipulates that no claim for relief shall be maintained unless notice of intention to claim the relief is served within the prescribed time. Therefore, when the notices has not been served in due time, and an application is made under s. 45 for an extension of the time for serving the notice, the onus is on the person in default to satisfy the court that its discretion should be exercised in his favour. The question for the court in exercising that discretion is not simply whether the failure to serve the notice in time was excusable. (In so far as the second question in the case stated before us postulates that test, it is based on a wrong assumption.) The failure to serve the statutory notice of intention to claim relief may be understandable and excusable in retrospect, but the question of extension of time must be decided in the light of the situation between the parties as it exists when the court has to give its decision.

18 It is to be assumed that the primary reason for requiring a tenant who wishes to get a new tenancy to serve a notice on his landlord of his intention to claim such relief, is to apprisethe landlord in due time that such a claim will be made. If the notice is served within the prescribed time, the landlord has the option of contesting the tenant's claim or of negotiating the terms on which the new tenancy will be granted. If the notice of intention to claim a new tenancy is not served within the prescribed time, the landlord may be led to believe that no such relief will be sought. In the bonafide assumption that he will be entitled to vacant possession he may sell the property, or he may lease it to someone else, or he may arrange to reside in it or to start business in it, or he may decide to reconstruct it, or to deal with it otherwise on the basis of having vacant possession. In such circumstances - and I instance only a few examples of the complications that may flow from a failure to serve the statutory notice - the original lapse in regard to service of the...