Frederick Lawrence Ltd v Freeman, Hardy & Willis Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER |
| Judgment Date | 02 July 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0702-1 |
| Date | 02 July 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J0702-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Romer and
Lord Justice Pearce
In the Matter of a Lease dated 30th December 1933 and made between J. Sears & Co. (True Form Boot Co.) Limited of the one part and F.J. Cartwright Limited of the other part being a Lease of the premises known as Number 167 and the upper floors of 169 High Street, Camden Town, in the County of Middlesex for a period of 25 years (less the last three days thereof) from the 25th March 1934
In the Matter of the Landlord and Tenant Act 1954
Mr. LIONEL BLUNDELL, Q.C. and Mr. RONALD BERNSTEIN (instructed, appeared on behalf of the Appellants (Freeman Hardy & Willis Limited, Respondents).
Mr. JOHN ARNOLD Q.C. and Mr. ALLAN HEYMAN (instructed by Messrs. Isadore Goldman & Son) appeared on behalf of the Respondents (Frederick Lawrence Limited, Applicants).
: The Judgment which Lord Justice Romer will deliver, is the Judgment of the Court.
This appeal arises out of an application by Frederick Lawrence Limited, who are the tenants of No. 167 and the upper floors of No. 169 High Street, Camden Town, Middlesex, for a grant of a new tenancy of those premises for a period of 14 years from the 22nd March, 1959. The application was made under section 24 of the Landlord and Tenant Act, 1954, and the Respondents to the application were Freeman Hardy & Will is Limited (hereinafter referred to as "the landlords"). The landlords opposed the application on the ground specified in paragraph (g) of section 30 sub-section 1 of the Act. The matter came before Mr. Justice Roxburgh, and by his Order dated the 6th February, 1959, the learned Judge declared that by virtue of section 30 sub-section 2 of the Act the landlords were not entitled to oppose the tenants' application. The landlords appeal against that Order.
The facts are not in dispute. By an underlease dated the 30th December, 1933, J. Sears & Company (True Form Boot Company) Limited (hereinafter referred to as "Sears Limited") demised the aforesaid premises to F.J. Cartwright Limited for a term of 25 years (less the last 3 days) from the 25th March, 1934. On the 29th November, 1934. that lease was assigned to the Applicants and remained vested in them on the expiry of the term on the 22nd March, 1959. By a lease dated the 10th March, 1952, the said premises were demised to Sears Limited for the term of 99 years, subject to the tenancies affecting the same, and on the 1st November, 1954, the premises so demised were transferred (being registered land) to the landlords for the unexpired residue of the said term. Upon the registration of this transfer on the 13th November, 1954, the, landlords accordingly became entitled to the leasehold reversion in the premises expectant upon the termination of the Applicants' underlease and were still so entitled on the 22nd March, 1959.
On the 28th March, 1958, the landlords served on the Applicants a notice under section 25 of the 1954 Act terminating their tenancy on the 22nd March, 1959, and intimating that they would oppose an application to the Court for the grant of a new tenancy on the ground that on the termination of the current tenancy they (the landlords) intended to occupy the premises for the purposes of a business to be carried on by them. On the 18th July, 1958, the Applicants applied for a new lease, and affidavit evidence was filed by both parties. As a result of this evidence it was plain that the landlords had established their ground of opposition as stated in the notice which they had served on the Applicants (which was in fact the ground specified in section 30 sub-section 1 (g) of the Act) and the Applicants did not contend to the contrary. The Applicants objected, however, that the landlords were precluded from opposing their application by the provisions of section 30 sub-section 2 of the Act, which are in the following terms: "The landlord shall not be entitled to oppose an application on the ground specified in paragraph (g) of the last foregoing sub-section if the interest of the landlord, or an interest which has merged in that interest and but for the merger would be the interest bi' thelandlord, was purchased or created after the beginning of the period of five years which ends with the; termination of the current tenancy, and at all times since the purchase or creation thereof the holding has been comprised in a tenancy or successive tenancies of the description specified in sub-section 1 of section twenty-three of this Act".
The Applicants' contention was that the interest of the landlords was (in the formula of the sub-section) purchased or created after the beginning of the period of five years which ended with the termination of the Applicants' current tenancy. Their case was that the relevant five-year period commenced in November, 1954, when the landlords took a transfer of the reversionary interest, and that their own current tenancy terminated on the 22nd March, 1959, which was the date of termination specified in the notice which the landlords had Berved on them pursuant to section 25 of the Act.
The learned Judge decided the question in the Applicants' favour. He did so on the ground that whether or not the landlords had "purchased" their interest within the five-year period (a point which he found unnecessary to decide) the interest had been "created" within that period and that section 30 sub-section 2 accordingly applied. On the appeal coming on before this Court Mr. Arnold, for the Applicants, intimated that he desired to support the Judge's Order on the ground that the landlords had "purchased" their interest within the five-year period rather than on the ground that it had been "created" within that period. He conceded that the "interest" of the landlord, namely, the reversion expectant on the termination of the Applicants' tenancy, had been "created" by the lease, hereinbefore referred to, of the 10th March, 1952, and in our opinion this concession was rightly made. It is true that the landlords did not acquire this interest until 1954 but that seems to us to be irrelevant. In our judgment the word "created" in section 30 sub-section 2 is referable to the creation of a landlord's interest and not to the creation of the landlord's title to it. The contrary view would appear to render the word "purchased", which appears as the alternative to "created", wholly redundant.
The arguments before us were accordingly addressed to the uestion whether the landlords were disqualified from opposing the Applicants' application on the ground that their interest was purchased after the beginning of the period of five years which ended with the termination of the Applicants' current tenancy, and that is the issue with which we have to deal.
The first question which arises upon this issue is whether the acquisition by the landlords from Sears Limited in 1954 of the leasehold interest in the premises dependent on the expiration of the Applicants' tenancy constituted a "purchase"; for if it did not the disqualifying provisions of section 30 sub-section 2 do not apply. If this question were res integra there would we think be much to be said - particularly having regard to the dictionary definition of the word "purchase" to an example of which we later refer - for the view that the word "purchase" in the section under review should not be confined to a transaction of buying for money or (strictly) money's worth. For the limited construction of the word appears to involve serious anomalies. Thus, upon this limited construction, it might make all the difference to a case like the present whether the landlord, in acquiring his relevant interest, had in addition to giving covenants to his vendor paid also a monetary consideration however small. Moreover, in a case where the landlord's interest had been "created" rather than "purchased" it would be immaterial whether the landlord had or had not, upon the creation of his interest (for example, by the grant of a lease), paid a cash consideration or its equivalent.
But the question is not res integra; for this Court in ( H.L. Bolton (Engineering) Company Limited v. T.J. Graham & Sons Limited 1957 1 Queen's Bench, page 159) defined the word "purchased" in the Act of 1954 in a way which is, in our opinion, binding upon us. Lord Justice Denning (as he then was), in whose Judgment Lord Justice Hodson and Lord Justice Morris concurred, expressed the conclusion that the word in section 30 sub-section 2 of the 1954 Act "has the same meaning as in the Rent Acts. It has its popular meaning of buying for money and not the technical legal meaning of acquisition otherwise than by descent or escheat". What then is the popular meaning of "buying for money"? One of the definitions of "buy" in the Shorter Oxford English Dictionary is "to get possession of by giving an equivalent, usually in money; to obtain by paying a price." In ( Inland Revenue Commissioners v. Gribble 1913 3 King's Bench, page 212) Lord Justice Buckley said: "'Purchaser' may, as it seems to me, mean any one of four things. First, it may bear what has been called the vulgar or commercial meaning; purchaser may mean a buyer for money. Secondly, it may include also a person who becomes a purchaser for monejr's worth, which would include the case of an exchange. Thirdly, it may mean a purchaser for valuable consideration, which need not be money or money's worth, but may be, say, a covenant, or the consideration of marriage. Fourthly, it may bear that which in the language of real property lawyers is its technical meaning, namely, a person who does not take by descent".
Lord Justice Buckley's Judgment was a...
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