Bolton's (House Furnishers) Ltd v Oppenheim
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE HARMAN |
| Judgment Date | 20 July 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0720-1 |
| Court | Court of Appeal |
| Date | 20 July 1959 |
[1959] EWCA Civ J0720-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson and
Lord Justice Harman.
Mr R. E. MEGARRY, Q. C., MR RONALD BERNSTEIN and MR CHRISTOPHER PRIDAY (instructed by Messrs Harold Benjamin & Collins) appeared as Counsel for the Appellants.
Mr LIONEL A. BLUNDELL, Q.C. (instructed by Messrs Harris Chetham & Co.) appeared as Counsel for the Respondent.
: This is an appeal from an order of Mr Justice Danckwerts upon a summons issued in proceedings started by the appellant under the Landlord and Tenant Act, 1954. The landlord has served on the tenants a notice of termination under Section 25 of the Act giving the tenant notice to quit on the 25th March, 1959. He has opposed the grant of a new tenancy and, as required by Section 30, sub-section 1 of the Act, has purported to state the grounds. The question is whether he has effectively done so, for if he has not the notice is invalid. The originating summons asked for the following relief, namely, an order pursuant to the Act for the grant of a new tenancy of the premises in question and for such further and other relief as might be just.
This matter comes before the Court upon a pro forma summons issued by direction of the Judge for consideration of the preliminary question whether the notice is bad. I see no reason why, if the tenant wishes to take a point of that kind, he should not include it in the originating summons, that is to say, include a prayer for a declaration to that effect. That seems to me to be a procedure which would save costs.
Section 30, sub-section 1 of the Act reads: "The grounds on which a landlord may oppose an application under sub-section 1 of Section 24 of this Act are such of the following grounds as may be stated in the landlord's notice under g. Section 25 of this Act or, as the case may be, under sub-section 6 of Section 26 thereof, that is to say", and then a series of grounds are set out of which (f) is: "that on the termination of the current tenancy the landlord intends to demolish or reconstruct phe premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on felie holding or part thereof and that he could not reasonably do so without obtaining possession of the olding". There is, I should say, a prescribed form of notice prescribed by regulations made by the Lord Chancellor by statutory instrument. No assistance is to be gained by looking at the prescribed form because the question to be determined upon these proceedings is not assisted by reference to the form itself. The notice given is to the tenant at 395 Brixton Road, London, by the landlord giving notice, as I have said, terminating the tenancy on the 25th March, 1959, and stating that the landlord will "oppose an application to the Court (Note 3) under Part II of the Act for the grant of a new tenancy on the ground (Note 4) that on the termination of the current tenancy I intend to demolish the premises comprised in the holding and thereafter to carry out substantial work of construction on the holding". Note 4 on the front of the notice refers to the back of the form which sets out in full, although not exactly in the words of the statute, the grounds upon which the landlord can rely as showing that the tenant had, if he looked, full opportunity of seeing the whole effect of the relevant section without looking at the Act of Parliament itself.
Thus the landlord has set out his intention. There are in fact six alternative i:atentions which the landlord can have and he has set out with sufficiency his intention but he has not added the concluding words of sub-paragraph (f) "that he could not reasonably do so without obtaining possession of the holding". It is upon that that the tenant submits that the notice is defective.
As the learned Judge pointed out, the concluding words contain an essential, condition of the grounds. If the landlord failed to prove at the hearing - and that is the material time - that they could not reasonably carry out their intention without obtaining possession of the holding, they would failor, to put it in another way as Lord Justice Harman did in the course of the argument, the last part of the subParagraph is in effect a proviso which would prevent the landlord from relying on the intention described in the section if he could reasonably carry out his intention without obtaining possession of the holding. The concluding words apply of course to all the six alternative intentions. Does the omission of the concluding words invalidate the notice? The learned Judge, bearing in mind that a notice like an ordinary notice to quit is a unilateral notice which must be strictly construed against the landlord under the general law, would I think have decided the case against the landlord had he not had before him the decision of this Court in the case of Biles v. Caesar, to which I will refer. In that case the question was different. There the landlords had given notice "to demolish and reconstruct the whole of the premises comprised in your holding". The landlord only intended to demolish a substantial part and not the whole of the premises comprised in the holding and this Court held that the notice was good. Mr Megarry has sought to distinguish that case since there the greater included the less and he accepts the decision on that basis. He, however, argues that the decision in that case is not conclusive against him since the language used by the Court went further than was necessary to cover that situation and he said that that language ought not to control the position where there is, as he says, a vital omission in the notice.
I accept the contention that there is a distinctio. Nevertheless I think the Court did in the case of Biles v. Caesar and also in the unreported case of McMullen v. Great Southern Cemetery and Crematorium Co. Ltd., a copy of which has been obtained from the Bar Library, use language which strongly supports the landlord's contention that the Court should take a similar view in this case.
Biles v. Caesar is reported in 1957, 1 Weekly Law Reports at page 156. Lord Justice Denning on page 158 said; "In my judgment, the tenant's argument on this point is not correct. It is sufficient for the landlords in their notice of opposition to specify the particular paragraph - (a), (b), (c) (d), (e), (f) or (g) of Section 30(1) upon which they rely. It is not necessary for them to specify any of the subsidiary portions of a paragraph, so long as they make clear which is the paragraph on which they rely. It seems to me quite plain that the landlords here in their notice and in their answer were relying on ground (f)". Then he went on to point out that the landlord did not prove the full extent of the notice, I made observations which I think are to the same effect.
The unreported case of McMullen v. Great Southern Cemetery and Crematorium Go. Ltd. was heard by the Court on the 19th November, 1958, the Court being presided over by the Master of the Rolls. The notice there was under sub-paragraph (g) and it was said to be...
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