Harrison-Broadley v Smith
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES |
| Judgment Date | 05 February 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0205-3 |
| Date | 05 February 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0205-3
Lord Justice Harman
Lord Justice Pearson and
Lord Justice Davies
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Salmon - Middlesex)
Mr. MICHAEL ALBERY, Q. C. and Mr. J. S. TAYLOR (instructed by Messrs. Rollit, Sons & Haydon, Agents for Messrs. Thompson, Cook & Babington, Kingston-upon-Hull) appeared on behalf of the Appellants (Plaintiffs).
Mr. C. J. A. DOUGHTY. Q. C. and Mr. R. T, MONIER-WILLIAMS (instructed by Messrs. Burton, Yeates & Hart, Agents for Mr. W. D. Pinkney, Bridlington) appeared on behalf of the Respondent (Defendant).
LORD JUSTICE HAKMAN: This is an appeal from a judgment of Mr. Justice Salmon (as he then was) pronounced on the 22nd July of last year, in a very odd action. It is an action started by a specially indorsed writ whereby the plaintiffs, in three several capacities and not jointly, asked for injunctions restraining the defendant from remaining in occupation of a house and land in the East Riding of the county of Yorkshire, on the ground that he is a trespasser there and has no rights. The defendant defended the action upon the footing that he had a tenancy of that same house and land under the Agricultural Holdings Act, 1948, and that he was entitled to remain there until the machinery under that Act should work itself out and he be forced to go. And there he still is.
The position is a truly remarkable one. The learned judge gave judgment for the defendant. In language to which I am more used, he dismissed the action; but he also dismissed the counterclaim, which was a counterclaim which asked for a declaration (principally) that the defendant's contention under the Agricultural Holdings Act was justified. Nevertheless when you read the judgment it is implicit in it (and the learned judge says so) that the defendant does succeed by virtue of that statute and for no other reason. The point before us is really whether the learned judge was right in that respect.
The learned judge has admirably stated the facts, but in order to make this judgment intelligible I must state some of them at any rate again. The second plaintiff is a lady who had long lived in this house with her husband, its owner, who also owned and farmed this land. He was a wealthy man. It was a farm on a large estate and it had been kept in hand. He died in 1944, intestate, and the second plaintiff and her to step daughter were the persons who took out letters of administration in 1946. The widow, not unnaturally, was left occupying the mansion house, and she did, with the aid of a foreman, continue to farm the 176 acres of farm and which her husband had held in hand. But she got wearied of that unprofitable occupation unprofitable as italways is in the hands of amateurs - and in 1955, looking around for a way out, she hit on the defendant, who was a good falser, as I gather, and a capable person. She could not herself grant a tenancy; she was one of two administrators, and although there was an informal agreement among the family that this house and land should so to speak be allocated to her as part of her one half life interest in her husband's estate, the land was still legally in the hands of the administrators, who were in a position to and who did indeed exercise the power to sell it at a later date as personal representatives.
Faced with this curious situation, the lady went to her accountant (I think once said that accountants are the with doctors of the modern world and they appear indeed willing to turn their hands to any kind of magic) and he produced a very remarkable document which is called "Heads of Agreement" signed by the second plaintiff and the defendant in 1955 which it is agreed did produce a partnership between the two of them in the business of farming this land. Each was to bring in £1,000 in cash and a certain amount of machinery, which was to be valued and added to his or her capital account. The partnership could be determined by twelve months' notice at any time on either side. There was no mention of land in the agreement at all. Presumably, therefore, on the face of it the land was left out of the agreement and did not ever become partnership property. But he was to work the land and was to have, as it was said, the powers of a manager, although he was not a manager in the sense of being agent for the administrators or the second plaintiff. As to profits, he was to take nine-tenths of them and she onetenth. Certain outgoings which would not normally be partnership outgoings were to be paid out of the partnership account.
That arrangement seems to have worked well. He was a good farmer, and he improved the land and spent a large part of the profits raising the state of its fertility. There were I believe accounts drawn up from time to time but we have never looked at them and one does not know what happened so far as profits were concerned.
The next event was that in August, 1960, a wing of the house fell vacant and as a matter of convenience the second Plaintiff, at the defendant's suggestion, agreed that he should take over that wing: he should not pay anything for it but should conduct the farming management from there instead of from a Council house a mile or so down the road. That he did. No money passed either way. He did a few decorations, at the expense of the partnership account, which meant that he paid ninetenths and she one-tenth.
That was in August, 1960. In October of that year the administrators sold the property to the second plaintiff's son, the first plaintiff. They assured it to him by an instrument of assent of the 14th October, 1960. The whole of the purchase money was lent to him by his mother, to whom he gave a mortgage on the property to secure the purchase money. At the same time he gave her a written tenancy agreement in respect of the house and land which was to last for her life and was to be determinable by her on six months' notice but not by him.
In 1962 the second plaintiff was desirous of getting out of the house and farm and giving up the responsibility of it and she wrote to her partner, the defendant, an informal kind of document giving him notice to determine the partnership agreement. It was a notice of more than a year's duration and was to end I think on the 30th April of the following year. It is a letter of the 26th April, 1962, in these terms: "Dear George, I am writing this note to tell you that I wish to terminate our partnership agreement from the end of April next year". It is now admitted that that was a good notice to determine the partnership, although it was not so admitted in the court below.
At that point of course one would think that preparations would be made to wind up the partnership when it came to an end; but nothing happened at all; and in the autumn of that year the eon, the first plaintiff, contracted to sell the whole fee simple in the property to the third plaintiff and to give him vacant possession, (the second plaintiff agreeing) on completion. There is a clause in the contract about his paying out the secondplaintiff and "her farming partner", as the defendant is called, on the usual scale in the county. The completion date fixed was the 30th April, 1963 the date when the partnership was to come to an end.
In February of 1963 two notices were served by the Plaintiffs' advisers on the defendant, being notices to quit first the house and then the land by the 30th April, on the footing that he was a license on licences revocable at will. The defendant declined to take any notice and he said that the Agricultural Holdings Act, 1948, had given him a right to stay on the land and continue to farm it. As a result, on the 3rd April, 1963, before the notices expired, the writ in this action was issued. It was surprisingly enough a specially indorsed writ. It was, even more surprisingly, not connected in any way with the partnership. It was simply a writ asking for injunctions to restrain the defendant as a trespasser from coming on the land or entering the house after the 30th April. Even more surprisingly, application was made by summons in chambers in the Queen's Bench for an immediate interlocutory injunction. That did not receive quite the severe treatment it would have had in another livisions the judge simply would not make any order on it? and he made the costs costs in the action, which is one of the most surprising things of all those that happened in this case. But there it is: no order was made on the summons; and the Defence was then put in.
The Defence, apart from the point, now abandoned, as to the date of the notice determining the partnership, relies upon the Agricultural Holdings Act, 1948, and by paragraph 14 of the Defence and Counterclaim the defendant "admits that he has refused and still refuses to quit or deliver up possession of the part of the house or of the land and that he intends to remain in occupation and carry on the said farming business, all of which he is entitled to do unless and until the said partnership and the said agricultural tenancy has been validly determined". In other words, both have got to be put an end to before you canturn him out. He then counterclaims for a declaration that he enjoys an agricultural tenancy of the house and land which can only be determined in accordance with the 1948 Act.
The learned judge acceded to that place. He held that there was such an agricultural tenancy and that it did entitle the defendant to succeed in the action. At places in his judgment the learned judge realised and accepted the fact that the agricultural tenancy, if there was cne, was vested not in the defendant but in the partnership consisting of the second plaintiff and him. But there are other places in the judgment where the learned...
To continue reading
Request your trial
- Dr Mahesan a/l Subramaniam v Ponnusamy a/l P Rajoo
-
Alfred George Creasey and Another v June Sole and Others
...2 (1) of the Act to licences to occupy land for use as agricultural land was, in my view, correctly stated by Davies L.J. in Harrison-Broadley v Smith [1964] 1 WLR 456, 470, where he said: "… there cannot be such a licence without a right of exclusive occupation during the currency of the l......
- Chuah Eng Khong v Malayan Banking Bhd
- Bahamas International Trust Company Ltd v Threadgold
-
Table of Cases
...95, 98, 99 Harries v Barclays Bank plc [1997] 2 EGLR 15 235 Harris Bus Co Ltd, Re [2000] BCC 1151 142, 160 Harrison-Broadley v Smith [1964] 1 WLR 456 20 Hawk Insurance Co Ltd, Re [2001] EWCA Civ 241, [2001] 2 BCLC 480 24, 25, 28, 29, 30, 31, 37 Hawkes Hill Publishing Co Ltd (in liq), Re [20......
-
Introduction
...opened after 26 June 2017. An order made under Article 51 of EU Regulation 2015/848 will allow an 67 Harrison-Broadley v Smith [1964] 1 WLR 456 and, more recently, Lie v Mohile [2014] EWHC 3709 (Ch). 68 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings [2000] OJ ......