Crouch & Lees v Haridas
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE STAMP |
| Judgment Date | 29 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0629-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 1971 |
[1971] EWCA Civ J0629-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: His Honour Judge Herbert Westminster County Court)
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Stamp
The Appellant (Defendant, Mr. V. T. Haridas) appeared in person.
Mr. Andrew Brooks (instructed by Messrs. M. Phillips & Co.) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal from a judgment of His Honour Judge Herbert given at the Westminster County Court on the 10th December last, when he gave judgment for the plaintiff for a sum of £95. The claim was really a claim for a somewhat unusual form of house-agents' commission. Oddly enough, the claim was for £90, the judgment was for £95, and in fact if the plaintiffs had been entitled to recover at all their proper claim should have been for £90. 10s. Od. But that is perhaps a small matter.
From that judgment the defendant, Mr. Haridas, who is a member of the English Bar and has appeared here in person, as he did in the court below, appeals. In his defence in the court below the substance of his case was that he denied that he had entered into any such agreement as the plaintiffs alleged, and alternatively, quite apart from certain subsidiary points, he said that the agreement, if any, was unenforceable because it was illegal.
I think that the simplest way to describe the alleged contract is to read the plaintiffs' Particulars of Claim, bearing in mind, as I have said, that the defendant denies that the agreement alleged by the plaintiffs was ever made. It says: "(1) The Plaintiffs' claim is for £90 commission due to them from the Defendant under an agreement made orally in or about the month of" "July" it was originally, but by amendment it became "March, 1968, between the Defendant and one Lees acting for the Plaintiffs.
"2. The Defendant was seeking particulars of a flat which was to let. The Plaintiffs, who are estate agents, were not retained by the landlords and informed the Defendant accordingly, who agreed that in consideration of the Plaintiffs supplying him"with particulars of the said flat, he would pay the Plaintiffs their commission in accordance with the scales authorised by the Chartered Auctioneers and Estate Agents Institute, namely 10 per cent, of one year's rental in the event of his taking a lease of the said flat.
"3. In pursuance of the said agreement the Plaintiffs supplied the Defendant with particulars of a flat at 103 Bicken hall Mansions, Gloucester Place, London, W.1 and the Defendant subsequently took the same on a five-year lease at a rental of £905 per annum".
It appears that when the case first came into the list the learned judge informed Mr. Haridas and counsel on the other side that he had awaiting delivery a reserved judgment on a somewhat similar point; and so the case was adjourned in order that the parties might await the delivery of that judgment in the other case and have the benefit of seeing a copy of the judgment delivered by the learned judge. That was done; and I shall have to come back to that in a moment.
The case came on for hearing, and the learned judge found that the agreement as alleged by the plaintiffs was made. Mr. Haridas still would like to dispute that, but he appreciates, of course, that, as the claim made by the plaintiffs did not exceed £200, there is no appeal to this Court on a question of fact but only on a question of law.
Again I think it may be convenient for me to read the judgment, which is extremely short. The point to be observed in it is that, although the learned judge deals with one of the defendant's allegations of illegality, there is no mention at all of the other.
"In this case", said the judge, "the plaintiffs are a firm carrying on the business of estate agents. In or about March,"1968, the defendant approached a Mr. Lees, a director of the plaintiff firm, and requested him to obtain for him an unfurnished flat. In evidence Mr. Lees stated that when he received this request from the defendant he made it clear that his firm's fees, in the event of obtaining a suitable flat, would be 10 per cent, of one year's rental. The flat at 103 Bickenhall Mansions, Gloucester Place, London, W.1, was subsequently obtained by the plaintiffs and the defendant went into possession, the annual rent being £905 per year.
"The defendant contends that there was no agreement whatever as to the payment of 10 per cent, of one year's rental, and further holds that, in any event, the agents' fee constitutes a premium and therefore is illegal and unenforceable.
"I have heard both parties giving evidence and I am satisfied that there was an agreement to pay to the plaintiffs 10 per cent, of the annual rent. As to the question of the 10 per cent, alleged to constitute a premium, in my judgment the plaintiffs are entitled to charge a fee and such fee, in this case, was not a condition by the landlords for the granting of a lease, nor was it an addition to the rent charged by the landlords, and therefore it does not constitute a premium".
So the judge did discuss the question whether this was a premium, and held that it was not. But the odd thing is that he made no mention at all in the judgment of the Accommodation Agencies Act, 1953, which was discussed by the learned judge in London Accommodation Bureau Ltd. v. Covington, the other County Court case, for the delivery of the judgment in which he had adjourned the present case. Indeed in that judgment, a copy of which we have seen, not only was the Accommodation Agencies Act mentioned but the learned judge also referred to a reported case on the Act, namely, McInnes v. Clarke ( 1955 1 Weekly Law Reports102).
The defendant's case now as argued in this Court was, first, that under section 85 of the Rent Act, 1968, this demand by the plaintiffs, the house agents, for 10 per cent, of the first year's rent was a premium and, therefore, was illegal and unenforceable. Section 85 provides as follows: "Any person who, as a condition of the grant, renewal or continuance of a protected tenancy" which this was "requires, in addition to the rent, the payment of any premium or the making of any loan (whether secured or unsecured) shall be guilty of an offence under this section". Sub-section 2: "Any person who, in connection with the grant, renewal or continuance of a protected tenancy, receives any premium in addition to the rent shall be guilty of an offence under this section".
Mr. Haridas strongly submits in this Court that that was the nature of this transaction. I do not agree. There is abundant authority to the effect that, in order to constitute a "premium" within the meaning of that section and the earlier...
To continue reading
Request your trial
-
Saunders v Soper
...the deposit. In the present case there was no demand for or acceptance of payment just for supplying addresses. 27The next case was Crouch & Lees v. Haridas [1972] 1 Q.B. 158. The plaintiffs, a firm of estate agents had sued for commission for supplying the defendant with particulars of an......