Betty's Cafés Ltd v Phillips Furnishing Stores Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 28 November 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1128-1 |
| Date | 28 November 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J1128-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed)
Lord Justice Birkett and
Lord Justice Homer
re 42-44. Parley Street. Bradford
re Landlord and Tenant Act. 1954
Mr. J.P. WIDGERY (instructed by Messrs Clifford-Turner & Co.) appeared on behalf of the Appellants.
Mr. LIONEL A. BLUNDELL and Mr. C.B. PRIDAY (instructed by Messrs Ward, Bowie & Co., Agents for Messrs Booth & Co., Leeds) appeared on behalf of the Respondents.
I will ask Lord Justice Birkett to deliver the first Judgment.
LORD JUSTICE EIRKETT: This is an appeal from a decision of Mr. Justice Danckwerts given on the 7th May of this year. He decided that a company known as Betty's Cafes Ltd. was entitled to "be granted a new lease of certain premises in Bradford, 42 and 44 Darley Street, under the provisions of the Landlord and Tenant Act of 1954. The landlords, Phillios Furnishing Stores Ltd., appeal to this Court against that decision.
The relevant facts would appear to be: Betty's Cafes Ltd. had carried on the "business of cafe proprietors and retail confectioners in these premises since 1925. They had held the premises on a series of leases, none of which had ever exceeded a term of eight years, and the last lease, dated the 29th April 1946, Was for a term of eight years expiring on the 1st December 1953. Since the 24th June 1955 Betty's Cafes Ltd. had been in possession of the whole of the premises, a portion formerly having been sub-let to William Timpson Ltd. The premises were excellently situated in Bradford, and Betty's Cafes Ltd. did a very substantial business there. They were naturally anxious to remain where they had carried on business for so long, and invoked the provisions of the Act of 1954 to enable them to do so. Phillips Furnishing Stores Ltd. Bought the property on the 25th August 1953 for 38, 750. The interest they acquired vas the remainder of the term of 999 years from the 1st January 1806 at a ground rent of 15.6.0., but completion did not take place until the 1st March 1951- The purchase in August 1953 made no doubt with the intention of opening a shop in Bradford when the lease to Betty's Cafes expired, and it was thought that a wise method of doing this would be to re-sell the property and obtain from the purchaser a lease to Phillips Furnishing Company Ltd. at a rent that would bring a return of 6 per cent to the purchaser. The Appellants owned some 60 shops in various parts of the countrywhere they carried on the business of furniture dealers. On the 23rd September 1953, that is in the month following the acquisition of the property by the Appellants, the Judge of the Bradford County Court made an Order for a new tenancy of £2 and 44 Darley Street for a period of twelve months from the 1st January 1954 under the provisions of the Leasehold Property (Temporary Provisions) Act, 1951 the new tenancy was to be at a rent of £2,000 and on the same terms as the existing lease.
The Landlord and Tenant Act 1954 came into operation on the 1st October 1954. Part II of the Act is concerned with security of tenure for business, professional and other tenants. Section 23 defines the tenancies to which Part II of the Act applies; and Section 23, so far as the material words in this case are concerned, says: "(1) Subject to the provisions of this Act, this Part of this Act applies to any tenancy where the property comprised in the tenancy is or includes premises which are occupied by the tenant and are so occupied for the purposes of a business carried on by him or for those end. Other purposes" Section 24 provides for the continuation of tenancies to which Part II of the Act applies, and for the grant of new tenancies, the material words being in sub-section (1): "A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of the Act; and, subject to the provisions of section twenty-nine of this Act, the tenant under such a tenancy may apply to the court for a new tenancy - (a) if the landlord has given notice under the next following section to terminate the tenancy, or (b) if the tenant has made a request for a new tenancy in accordance with section twenty-six of this Act". The substance of the matter, therefore, so far as the present special is concerned, at this stage is that (a) subject to the provisions of the Act, Part II applies to any tenancy where the property comprised in the tenancy is occupied by the tenant for the purposes of a business, and that covers the property 42 and44 Darley Street, Bradford; (b) the tenancy of 42 and 44 Darley Street will not come to an end at the expiration of the term unless terminated in accordance with the provisions of the Act; and subject to Section 29 of the Act, the tenant, Betty's Cafes Ltd, may apply to the Court for a new tenancy if (a) the landlord gives notice under Section 25 of the Act or (b) the tenant has requested a new tenancy under Section 26 of the Act.
On the 28th June 1955 Betty's Cafes Ltd. served a notice on the Appellants, Phillips Furnishing Company Ltd., requesting a new tenancy, thus invoking Section 26 of the Act, and asked for a period of fourteen years at a rent of £2,500, the rest of the terms of the new tenancy to be the same as those in the lease of the 29th April 1946. On the 15th August 1955 notice was given by Phillips Furnishing Stores Ltd. That the Company "would oppose the application for o. ne" tenancy, end this notice "as signed by one Jones, "ho "as the Secretary and a Director of the Company. The ground relied on in the notice was the ground set out in Section 30(1)(f) of the Act of 1954, that on the termination of the present tenancy the company intends to reconstruct the premises and the company could not reasonably do so without obtaining possession of the premises. "his was in accordance with Section 26(1)(6) of the Act of 1954.
It is important to remember that by the provisions of Section 30(1)(g) of the Act of 1954 a landlord can oppose an application by a tenant for a ne" tenancy if he establishes to the satisfaction of the Court that at the termination of the current tenancy he intends to occupy the premises for the purposes of his on business, to be carried on in the premises, or for his on residence; but he is not allowed to set up this ground of opposition if his interest was created after the beginning of the period of five years "which ends with the termination of the current tenancy and if at all times since the creation of the Interest the premises had been held on atenancy within Section 23 (1) of the Act of 1954. Phillips Furnishing Stores Ltd. could not rely on ground (g), therefore, and relied solely on ground (f).
In Atkinson v. Bettlson. 1955 Weekly Law Reports 1127, J.W. Smart (Modern Shoe Repairs) Ltd. v. Hinckley and Leicestershire Building Society, 1952 2 Times Law Reports 684, and Fisher, v. Taylor's Furnishing Stores Ltd., 1956 2 All England Reports 78, the Court of Appeal has discussed the grounds (f) end (g) of Section 30(1) of the Act of 1954, and Mr. Justice Danckverts "examined them carefully in the Court below. But do not think it necessary to discuss them further, for whilst the decision in Atkinson v. Bettlson has been reconsidered and explained in later cases, the position in this appeal is reasonably clear.
Whether the proposed work on the premises satisfies the conditions laid down in Section 30(1)(f), "that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work, of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding", is a matter' for the Court to determine on the evidence produced before it. In the present case Mr. Justice Denckwerts was-satiefled thet the work proposed by Phillips Furnishing Company Ltd. did satisfy the conditions and that finding vas in accordance with the evidence. There was here "substantial work of construction". The learned Judge was also satisfied that possession of the premises was necessary for carrying out the works in question. The only remaining question therefore was whether Phillips Furnishing Company Ltd. had established to the satisfaction of the Court that they intended to carry out the works in question.
Mr. Justice Danckwerts considered first of all what was the relevant time when the intention mentioned in Section 30(1)(f)must exist. He held that the relevant time vas at the date of the service of the notice "by Phillips Furnishing Company Ltd, that is, the 15th August 1955 -and, further, that on that date the Company had failed to establish that they had any such intention. He thereupon granted to Betty's Cafes Ltd. a new tenancy of the premises under Sections 33 and 34 of the Act of 1954. It was to be a tenancy for fourteen years, the maximum term permitted by Section 33, at a rent of £3,000 a year. The other terms of the tenancy were to be those of the lease of the 29th April 1946. Phillips Furnishing Stores Ltd. appeal against this decision and ask that the application by Petty's Cafes Ltd, for a new tenancy should be dismissed. In the alternative, they say that if the application is granted, the tern of fourteen years is excessive and inequitable and that it should be reduced to three years.
The first and most important question to be determined is: What is the relevant date at which the Intention referred to in Section 30(l)(f) must be shown to exist? it was submitted on behalf of Phillips Furnishing Company Ltd, that the learned Judge was wrong in deciding that the relevant date was the...
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...has referred us to a number of cases in which the problem was similar to that which I am now discussing. These include Betty's Cafes Ltd. v. Phillips Furnishing Stores Ltd. [1959] A.C. 20 and Marks v. British Waterways Board [1963] 1 W.L.R. 1008. Both decisions related to proceedings under ......
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