Featherstone v Staples
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE STOCKER,SIR ROUALEYN CUMMING-BRUCE |
| Judgment Date | 12 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0312-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0248 |
| Date | 12 March 1986 |
[1986] EWCA Civ J0312-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Stocker
and
Sir Roualeyn Cumming-Bruce
86/0248
MR DEREK WOOD, Q.C., and MISS JOANNE MOSS, instructed by Messrs Pinsent (Birmingham) appeared for the Appellants (Plaintiffs).
MR HAROLD BURNETT, Q.C., and MR ANTHONY De FREITAS, instructed by Messrs Hayes, Son & Richmond (Gainsborough), appeared for the Respondents (Defendants).
This is an appeal by the four plaintiffs in landlord and tenant proceedings from a judgment of Mr Justice Nourse given on 31st October 1984. The principal question in the case is whether a counter-notice, purporting to be served on behalf of a partnership of three persons and requiring that section 2(1) of the Agricultural Holdings (Notices to Quit) Act 1977 ("the 1977 Act") shall apply to a notice to quit, is valid, where it is given by only two of the three partner-tenants, but the third is a company wholly owned by the landlord, whose consent to the service of any such notice is required by the express terms of the partnership agreement.
The plaintiffs are the trustees of the will of the late Colonel Hugo Meynell. They are the freehold owners of all the land in question. The three defendants are Mr R.H. Staples and his brother, Mr J.D. Staples, to whom I shall refer as "the Staples", and a company wholly owned by the plaintiffs called Laughton Contracting Company Limited ("Laughton"). All the plaintiffs are shareholders in Laughton and they include two of its four directors.
On 12th September 1977 the Staples and Laughton entered into a written partnership agreement, by which they agreed that they should form a partnership to farm Bramley Farm, Laughton, Lincolnshire (which the Staples were already farming) as from 29th September 1977 under the name "Staples Brothers", provided that a tenancy of the farm was granted to the partners and any such tenancy should form partnership property. Clause 3 provided:
"The partnership shall commence on 29th September 1977 and shall continue for five years and thereafter unless and until dissolved by any Partner giving to the other Partners not less than 12 months written notice of dissolution such notice to take effect on the first anniversary of the 29th September next following the date of the notice Provided always that Laughton may not serve notice of dissolution except following a breach of this agreement by another Partner, or if a notice to quit has been given in respect of the new tenancy or any extension thereof Provided further that Laughton may serve notice of dissolution during the initial term of 5 years if such a notice to quit has been given and either any report shall have been commissioned or published on the law or relating to security of tenure of agricultural tenants or legislation or other governmental act shall have been announced or introduced in Parliament with a view to altering such law."
I take the following summary of the later provisions of the partnership agreement verbatim from the learned judge's judgment:
"Clause 6 provided that Laughton should not be liable to contribute capital to the partnership. Clause 7 provided that profits should be computed on the same basis as that employed in the computation of the profits of the Staples for previous accounting periods, save that no item of expenditure on capital equipment in excess of a certain amount was to be debited to profit and loss account without Laughton's consent in writing. The profits were to belong to the partners, as to an amount equal to the rent for the time being payable, to the Staples in such proportions as they might from time to time agree, and subject thereto to Laughton and the Staples in the proportions 7 1/2% and 92% respectively. Losses were to be borne by the partners in the same proportions as they were entitled to share profits. By clause 10 each of the Staples agreed diligently to attend to the partnership business, to devote a reasonable amount of time and attention thereto subject only to annual and other holidays on a basis to be agreed between them, and to farm the land in accordance with the rules of good husbandry and to observe the terms of the relevant tenancy or tenancies. Clause 11 was in the following terms: 'The Staples shall together have complete conduct of all negotiations leading to the grant of the new tenancy and thereafter in connection therewith, including any rent review (and the service of notice and settlement of compensation under Section 34 Agricultural Holdings Act 1948 ("the Act") but after 29th September 1982 no partner may serve a counter-notice under Section 24 of the Act without the consent of Laughton'.
"Clause 12 provided that the Staples should have complete conduct of the business of the partnership. Clause 13 provided that on the death, bankruptcy or retirement of either of the Staples his share in the partnership should accrue to the other of them on payment as therein mentioned. Clause 14 gave the Staples certain rights to require Laughton to retire from the partnership in the event of its winding up, whereupon Laughton's share would accrue to them without payment save for its share of undrawn profits. Clause 15 provided in effect for the provisions of the Partnership Act 1890 as to winding up to apply on a dissolution of the partnership, except that any surplus was to be divided between the Staples in the same proportions as they were entitled to share profits. These provisions can be summarised by saying that Laughton was to play no part in the partnership business and to have no interest in it save for its small share of profits."
On 23rd November 1977 the plaintiffs and the three partners signed a tenancy agreement whereby the partners were granted a yearly, non-assignable tenancy of Bramley Farm from 29th September 1977 at an initial yearly rent of £5,328.
On 6th October 1978 the Staples and Laughton entered into a second written partnership agreement whereby they agreed that they should form a partnership to farm further land at Wildsworth, Lincolnshire as from 25th November 1977, provided that a tenancy of the land was granted to the partners and any such tenancy should form partnership property. Though there were certain small differences between the provisions of the two partnership agreements, I think that in all respects material for present purposes their provisions were the same; like the learned judge, I will therefore hereafter refer to the provisions of the two agreements by reference to those contained in that dated 12th September 1977.
The terms of the partnership agreements thus clearly contemplated two things. First, at all times relevant for present purposes, Laughton was to have the right to serve twelve months' notice of dissolution to take effect on the first anniversary of 29th September next following the date of the notice if notice to quit had been given in respect of the new tenancy or any extension thereof. Secondly, no partner was to be free to serve a counter-notice under section 24 of the 1948 Act without Laughton's consent.
Also, on 6th October 1978, the plaintiffs and the three partners signed two tenancy agreements whereby the partners were granted yearly, non-assignable tenancies of certain lands at Wildsworth from 25th November 1977 at initial yearly rents of £1,587 and £1,856.
In due course the tenancy of some parts of the land at Wildsworth were surrendered. In the result, the three areas of land still subject to the three tenancies as at September 1983 comprised about 210 acres.
The partnership agreements show that it was originally intended that there should be two separate partnerhsips, one to farm two of the areas under the name "Staples Brothers" and the other to farm the third under the name "Staples Brothers (Wildsworth) Partnership". However, the accounts suggest that the two partnerships were treated as one, and, as the judge said, the point is of no importance.
The accounts of the partnership for the six years to 29th September 1983 and the annual reports and accounts of Laughton for the five years to 31st March 1982 are in evidence. The former accounts show that up to 29th September 1983 the partnershp either made a loss or did not make sufficient profits to exceed the amount of the rents for the time being payable in respect of the tenancies, with the result that no share of profits ever became payable to Laughton. It appears that the only activity of Laughton was trading in partnership with the Staples.
By three notices to quit dated 26th September 1983 and served on the same day, the plaintiffs gave to the Staples and Laughton notice to quit the three areas of land on 29th September 1984. By two notices dated 28th September 1983 and served on the same day, Laughton gave the Staples notice of dissolution of the two partnerships, also to take effect on 29th September 1984.
On or about 14th October 1983, without Laughton's consent, the Staples served on the plaintiffs three counter-notices. Each was headed "Agricultural Holdings (Notices to Quit) Act 1977" and specified the area of land in respect of which it was given. The material part of each notice was in these terms:
"Pursuant to the powers and provisions of the above Act WE HEREBY GIVE YOU NOTICE that we require that sub-s. (1) of s.2 of the above Act shall apply to your Notice to Quit in respect of the above land served on us and dated 26th September, 1983. This Notice is not to be taken as any admission on our part as to the validity of your Notice to Quit and it is given without...
To continue reading
Request your trial
-
The Queen v The Council of the City of Plymouth and Others
...of Fox J (as he then was) in Newman v. Keedwell (1977) 35 P&CR 393 where in a passage, which was cited with approval by Slade LJ in Featherstone v. Staples (1986) 1 WLR 861 at p.872, he said at p. 397: "Prima facie it seems to be unlikely that, if a statute or lease permits a tenant to take......
-
Gisborne v Burton
...Christopherson and the appellant. The power of the court so to act was said to be derived from Johnson v. Moreton cited above, and Featherstone v. Staples [1986] 1 W.L.R 861. Support was said to be found in Street v. Mountford [1985] A.C. 809, Quennell v. Maltby [1979] 1 W.L.R 318 and Hadji......
-
Alastair Eric Hotson Salvesen V. John Riddell+andrew Riddell+the Lord Advocate
...Blecic v CroatiaHRC (2004) 41 EHRR 13 Clift v UK App no 7205/07, ECtHR, 13 July 2010, unreported Featherstone v StaplesWLRUNKUNK [1986] 1 WLR 861; [1986] 2 All ER 461; 52 P & CR 287; [1986] 1 EGLR 6 Gasus Dosier und Fordertechnik GmbH v NetherlandsHRC (1995) 20 EHRR 403 Gauci v MaltaHRC (20......
-
Dr Sonny Lie (Claimant/Appellant) v Dr Rajan Mohile
...12 So far as Mr Ojo's further argument that I have mentioned is concerned, he submitted to us, based on the decision of this court in Featherstone v Staples [1986] 1 WLR 861 and section 5 of the Partnership Act 1890, that Dr Lie had authority to make the section 24 application for a new ten......