Cove v Flick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 17 December 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1217-3 |
| Court | Court of Appeal |
| Date | 17 December 1953 |
[1953] EWCA Civ J1217-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Denning and
Lord Justice Romer
MR JOHN GOWER (instructed by Messrs Kingsford, Dorman & Co., agents for Messrs Gregson & Golding, Southend-on-Sea) appeared on behalf of the Appellant (Defendant).
MR BRIAN GIBBENS (instructed by Messrs Gibson & Weldon, agents for Mr H. Maxwell Lewis, Southend-on-Sea) appeared on behalf of the Respondent (Plaintiff).
LORD JUSTICE SOMERVELL: We need not trouble you, Mr Gibbens.
This is an appeal from a decision of His Honour Judge Howard in a claim for possession. We are assisted by the extremely clear Judgment given by the learned County Court Judge stating the arguments involved and his decisions upon them.
The matter arises in this way: the house was let by the Plaintiff to the Defendant in 1938 for a year "and after the expiry of the said term from month to month untildetermined by notice." The tenancy continued. When the Defendant became lessee he did so with the idea that the house should be a home for his father and mother and his sister who, though married, was living apart from her husband, and himself. I will continue the history of what took place at the time before I set out what is relied on. In 1949 the lessee, the Defendant, was married and he and his wife got rooms. He has not stayed at the house since then. The rent has been paid and accepted. On the 30th August this year the Plaintiff served a notice to quit, and the learned Judge has made an order for possession which, I think, has been extended to the 15th January.
What I may call the main basis of the case and of the appeal is, of course, that the lessee has ceased to occupy the premises. He has married and gone to live elsewhere. If those were the only facts, it is not disputed that the Plaintiff's claim would be bound to succeed. The Defendant relied before the learned Judge and relies before us on two points. The first arises out of the evidence which was given as to what was said at the time of the tenancy. The Plaintiff in cross-examination, according to the Judge's note, said: "When Flick became tenant I spoke to him about tenancy. He said he was going to live there with father, mother and sister. I do think he said in his name because father too ill to take a tenancy". She obviously did not remember very clearly what had happened on an occasion some 15 years before. What the Defendant Flick himself said was: "I did mention I would live with parents and sister. I went into occupation with father, mother and sister. I made tenant as father ill. He is still there." It is suggested that by reason of that casual conversation as to what was going to happen the landlord's rights have been affected and, as the father, mother and the sister arestill there and desire to remain in occupation, the principle of Skinner v. Geary cannot be relied on; and in some way their occupation ought to be regarded as the occupation of the tenant and their home protected as if it was the Defendant's home, as it quite plainly no longer is. The learned Judge rejected that contention on the ground that, on the evidence which I have read, nobody could say that the whole basis of the agreement was that the property was to be occupied by somebody other than the lessee. I agree with that; I do not think it was the basis of it in any sense. It was stated as a matter of interest, no doubt. The landlord might have said: "your father is coming, why is not he the lessee?", but I do not think that anybody's right could have been affected by what was said at that time.
The learned Judge referred to a statement in Mr Megarry's book. He said it was quoted with approval in this Court in ( Wabe v. Taylor 1952, 2 Queen's Bench, page 735). I think it is right that I should say a word about that. Wabe v. Taylor was the case of a deserted wife and, so far as that is concerned, her position was, of course, a very special one and cannot assist the Defendant in this case. But another point had been made in argument in Wabe v. Taylor based on the facts as most clearly stated in Lord Justice Birkett's Judgment. They were these: at the time when the Plaintiff landlord bought the reversion the...
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...Millar v. MillarSC, 1940 S. C. 56. 2 Skinner v. GearyELR, [1931] 2 K. B. 546;Menzies v. MackaySC, 1938 S. C. 74. 3 Cove v. FlickELR, [1954] 2 Q. B. 326, and Wabe v. TaylorELR, [1952] 2 Q. B. 735, were also 4 Megarry, The Rents Acts, (8th ed.) p. 6. 5 1Robson v. HeadlandUNK, (1948) 64 T. L. ......
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