Dean v Wiesengrund
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE MORRIS |
| Judgment Date | 04 May 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0504-3 |
| Court | Court of Appeal |
| Date | 04 May 1955 |
[1955] EWCA Civ J0504-3
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Morris
Counsel for the Appellant: MR J. MONTGONERIE. Instructed by Messers Rondolph & Dean.
Counsel for the Respondent: MR M. CHAVASSE., instructed by Messrs & Pearkes.
The circumstances under which the claim in this section was made are set out quite clearly in the particulars of Claim which were delivered on the 12th January, 1955, and I read them
"1. The Plaintiff is the Executor of Matilda Agnes Blight deceased (Hereinafter called the Deceased) and sues as such. 2. The Defendant was at all material times and is the landlord of a ground floor flat (hereinafter called the Flat) at No. 17 Elvaston Place, Kenaington in the Country of London. 3. The said Flat was at all material times and is dwelling house to which the Rent and Mortgage Interest Restrictions Acts 1920 to 1939 apply. 4. By an Agreement in writing dated the 10th day of January of 1948 the Defendant granted to one William Alexander Edwards a of the said Flat for a term of 7 years from the 25th day of December 1947 at a yearly rent of 300 inclusive of rates the tenant covenanting to pay as additional rent any increase in the rates then payable. 5. By an Assignment in writing made on the 9th day of May 1949 the said William Alexander Edwards assigned the remainder of the said term of 7 years to the deceased. 6. From the date of the said Assignment until the date of her death on 17th day of January 1954 the Deceased paid rent to the Defendant at the agreed rate. Since the death of the Deceased the Plaintiff as executor has paid rent to the Defendant at the agreed rate. 7. The recoverable rent of the said flat at all times during the two years preceding the date of commencement of these proceedings was 175 per annum and overpayments have been made by the and the plaintiff as executor as follows:- (a) By the Deceased"; then the payment are set out, the over-payment alleged are show, and the total over-payment is said to be the sum of 40.4s.od. Then: "(b) By the Plaintiff": it says, similarly, the recoverable rent and the over-payments are set out, and it is claimed that 112. 15s. od. was overpaid,And the plaintiff claims both those sums against the Defendant.
Particulars of Defense were delivered. The first six paragraphs of the claim were admitted, and by paragraph 2 it is pleaded: "It is denied that the plaintiff is entitled to recover such overpayments of rent as have been made by the Deceased. Save as aforesaid paragraph 7 of the particulars of claim is admitted."
It will be seen that the Plaintiff claims 40. 4s. Od. as Executor, and 12. 15s. Od, which he himself had paid, Od. as Executor, 112. 15c. Od. which he himself had paid, and that those amounts were in excess of the recoverable rent, by which is meant the standard rent plus any permitted increase. There is no dispute as to the facts. The Defendant, the landlord, admitted that he was bound to repay the 112, 15s. Od. Which had been paid by the decreased Mrs blight.
The question which is to be determined arises under Section 14, sub-section (1), of the Increase of Rent and Mortgage Interest Act, 1920. Before I deal with that section, it is of some interest to notice the history of this legislation.
By Section 1 of the Rent act, 1915, it was provided that where the rent of a dwelling-house to which the Act applied was increased above the standard rate as defined the amount of that increase should be irrecoverable against the tenant notwithstanding any agreement to the country. The Act did not give the tenant a right to recover the excess amount. See Sharp Brothers and knight v. Chant. reported in 1917 1 king's Bench Division at page 771, in which case it was held that money as paid was paid under a mistake of law and could not be recovered by the tenant. To remedy this omission a section was included in the Courts (Emergency Power) Act, 1917: it is section 5, and for the purpose of this appeal it may be regarded as in the same terms as Section 14 of the Rent Act, 1920. The Act of 1920 repeated section 5 of the Courts (Emergency Powers) Act, 1917, and inPlace of it there came section 14 of the Rent Act, 1920, under which this appeal arises. The section provides that rent irrecoverable by the landlord under the Act or any Act repealed by the Act shall be recoverable from the landlord or his legal personal representative by the tenant by whom it was paid. It also provided that without prejudice to any other method of recovery any such sum… could be deducted by the tenant from any rent payable by him to the landlord.
Thus a tenant who paid more than the recoverable rent was given a right to recover the excess amount as soon as he had paid it, and even though he had entered into an agreement to pay it. This right was something of value to the tenant; it was a right which was capable of assignment, and it was something which, in the event of his bankruptcy, would have passed to the Trustee in Bankruptcy for the benefit of the creditors. Now it is said that the right does not pass to the executor or personal representative of the tenant, and the learned County Court Judge so held. The basis of the decision is that the section, when giving a right to recover, gives it to the tenant without mention of his personal representative, whereas, when stating from whom the excess amount may be recovered, it gives the landlord who has received the payment or his personal representative: from which it is said it must be taken that the intention of parliament was to make the right to recover a personal right in the tenant and one which does not pass to his personal representative. If that is right it means that of the tenant-a chose in action-which parliament gave to him lasted as long as he lived, but was destroyed by his death. It requires clear words to take away a right so given. I am not sure that any good purpose is served, when considering a question of construction, in inquiring how or why the words "or his personal representative" came first into Section 5 of theCourts (Emergency Powers) Act, 1917, after the words "from the landlerd … who received the payment." It is, however, interesting to notice the provision for dection at the end of sub-section (1) as well as the like provision at the and of sub-section (1) of section 14 of the Rent Act, 1920. It may wall be that questions were raised when the Bill was before parliament as to what would happen if there was a change of landlord by death. Would as executer be hle to say: "I am not the landlord; it is only the landlord against whom the excess amount can be recovered"? It is possible that some such discussion as this led to the insertion of the words "or his personal representative". However that may be, I find it difficult to see that an extension of the right of the tenant - if it is an extension, which I doubt - or a larification of the position is sufficient to deprive the tenant's estate of an asset given to the tenant by the section.
It seems to me that the landlord's estate would have been lisable to the tensnt without the introduction of the words must have been included to make it abundantly clear and to avoid uncertainty on a subject which would normally involve only small amounts, and on which it was particularly desirable to avoid uncertainly.
There have been two cases in Ireland in which it has been held on similar statutory provisions that the personal representative of the tenant could not recover. The first is a decision of the High Court, Twomey v. Cronin, which is reported in 1937 Irish Reports at page 324, in which case Mr Justice Johnston at page 328 drew attention to the contrast disclosed between the person who may be the plaintiff and the person who may be the Defendant in an action to recover money by wirtue of a section in similar terms, and referred to it as striking and as indicating the intentionOf the Legislature to draw the contrast. The second case, Minto v. Cehill, reported in 1940 Irish Reports at page 302, was before the Supreme Court on a Case Stated.
I must read passages from some of the judgments in that case.
The Chief Justice at page 307 said: "But I can see no reason why the words 'or his legal personal representstive' are introduced in the sub-section after the words 'the landlord … who received the payment' and are omitted after the fwords 'the tenant by whom it was paid' unless the intended that, while the isbility to repay should be imposed on the personal representative of the landlord, the right to recover the overpayment should be conferred only on the tenant who made it."
Mr Justice Meredith at page 309 said: "The sums recoverable under Section 15 can only be recoverable by the persons indicated in the section. In dealing with the right to recover, the section uses the words 'the tenant' but omits the words 'legal personal representative', although these words are expressly mentioned in connection with the corrlative duty to repay. The mission forces the conclusion that the distinction is not meningless. The tenant may have agreed with his eyes open to pay a higher rent than that permitted by the Act, and, having done so, it may well be thathis conscience did not allow him to go back on his contract and set up a claim for overpaid rent, and this may explain why the right to recover was confined by the section to the tensnt himself. The provisions of Section 15 are not penal, and the Legislsture may well have considered that the personal representative should not be obliged to make a claim for rent overpaid by a tenant who in his lifetime was lling to make such a claim, and accordingly conferred the right only on the...
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