Aviagents Ltd v Balstravest Investments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 11 January 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0111-1 |
| Court | Court of Appeal |
| Date | 11 January 1966 |
In the Matter of The Landlord and Tenant Act, 1954.
[1966] EWCA Civ J0111-1
Lord Justice Willmer,
Lord Justice Davies and
Lord Justice Russell.
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Judge Herbert at Westminster County Court dated 5th November, 1965.
Revised.
Mr E. ASHIBY BRAMALL (instructed by Messrs Dudley Clarke & Son) appeared on behalf of the Appellant on cross-notice (Respondent).
Mr G. ELLBNBOGEN (instructed by Messrs Michael Kramer & Co.) appeared on behalf of the Respondent (Applicant).
In this case Mr Bramall moves the court on behalf of landlords to strike out the notice of appeal lodged by tenants against a decision under the Landlord and Tenant Act 1954 given by His Honour Judge Herbert at Westminster County Court on the 5th November 1965. The proceedings arose out of an application by the tenants for a new tenancy of certain premises in Swallow Street, W.1. As to the grant of a new tenancy, we are informed that there was no issue in the court below. The only question in dispute was the amount of rent which the tenants ought to pay under the new tenancy which was granted. We are informed that they were holding the premises at a rent of £800 a year. The result of the learnedcounty court judge's decision was that the rent for the new tenancy should be £1,980 a year.
The question revolved very largely round the evidence given by surveyors on the two sides. The surveyors for the landlords expressed the view that the rent ought to be calculated at something in excess of £6 per square foot. The surveyor for the tenants, on the other hand, said that it should be calculated at something less than £4 per square foot. The figure arrived at by the learned judge, we are informed, amounts to £5 per square foot. In other words, the judge took a course somewhere between the figures put forward by the opposing surveyors.
The notice of appeal asks for an order that the order of the learned judge below be varied and that the rent be fixed at £1,425 per annum. Two grounds of appeal are stated in the notice of appeal. The first is that the judge misdirected himself in holding that the proper rent for the premises was £5 per square foot. The second ground is that the judge's order was against the weight of the evidence.
It is not in dispute that an appeal of this nature does not come within section 109 of the County Courts Act of 1959 so as to admit of the possibility of an appeal on fact. Mr Bramall's submission is that this notice of appeal, notwithstanding the use of the word "misdirection", discloses nothing but an appeal on fact, which it Is not competent for this court to entertain. Let me say straight away that Mr Bramall is plainly right so far as the second ground of appeal is concerned, and the contrary has not been argued. The first ground of appeal, on the other hand, may be said at least to give the impression of raising a question of law, because it does suggest that the learned judge misdirected himself. Mr Bramall, however, has told us of the course which the proceedings took in the court below, a course which I have already substantially indicated in what I have said, namely, that the question in issue was a pure question of quantum to be decided on the conflicting evidence of surveyors; in other words, the Issue before the learned judge wasa pure question of fact. In those circumstances Mr Bramall has submitted that this appeal simply is not a competent appeal, there being no question of law disclosed by the notice of appeal.
It should be pointed out that the landlords would undoubtedly suffer considerable hardship if the appeal were allowed to proceed, even though it were ultimately dismissed, for the effect of section 64 of the Landlord and Tenant Act 1954 is that the existing tenancy (that is to say, a tenancy at the rate of £800 a year) would continue in operation until three months after the hearing of the appeal, and after time for leave to appeal to the House of Lords had expired. On any view, therefore, the landlords would be very seriously prejudiced if the appeal were allowed to take Its ordinary course.
Mr Ellenbogen, who has appeared for the tenants, was invited by us to formulate what was the "misdirection" of which he accused the learned judge. All he was able to say was that at one point in the course of the...
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...to strike out a notice of appeal where an appeal is plainly not competent (see Aviagents Ltd v. Balstravest Investments Ltd [1966] 1 W.L.R. 150; [1966] 1 All E.R. 450; or where the appeal is frivolous, vexatious or an abuse of the process of the court (see Burgess v. Stafford Hotel Ltd [199......
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