Kammins Ballrooms Company Ltd v Zenith Investments (Torquay) Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Pearson,Lord Diplock |
| Judgment Date | 14 July 1970 |
| Judgment citation (vLex) | [1970] UKHL J0714-2 |
| Date | 14 July 1970 |
| Court | House of Lords |
[1970] UKHL J0714-2
Lord Reid
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Pearson
Lord Diplock
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Kammins Ballrooms Company Limited against Zenith Investments (Torquay) Limited, that the Committee had heard Counsel, as well on Thursday the 19th, as on Monday the 23d, Tuesday the 24th and Wednesday the 25th, days of March last, upon the Petition and Appeal of Kammins Ballrooms Company Limited, of 400 Ballroom, Victoria Parade, Torquay, Devon, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 30th of July 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Zenith Investments (Torquay) Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 30th day of July 1969, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In 1968 the Appellants were carrying on business in premises in Torquay which they occupied under a lease which was due to expire on 25th December. They wished to obtain a new lease from the Respondents their landlords. It would seem that there were some negotiations but there is no evidence about that. Then the Appellants invoked the provisions of the Landlord and Tenant Act 1954. Section 26 permits a tenant of business premises to make a request in the prescribed form for a new tenancy commencing not less than six months after the making of the request. On 2nd August the Appellants duly made a request for a new tenancy to begin on 2nd February 1969. The landlords then had two months in which to give notice that they would oppose an application for a new tenancy. Within a fortnight, on 15th August, they gave such a notice stating that they wished to occupy the premises for business purposes. The matter had to go before the County Court. If the landlord was able to substantiate his objection, the tenant would not get a new lease but he might get compensation. If the landlord failed to do that the tenant was entitled to a new lease on terms which failing agreement would be settled by the Court.
The point at issue having thus been settled the next step in procedure was for the tenant to make an application to the Court for a new tenancy. This the Appellants did by filing an application in the Torquay County Court on 4th September. Section 29 provides for the making of such an application as follows:
"29.—(1) Subject to the provisions of this Act, on an application under subsection (1) of section twenty-four of this Act for a new tenancy the court shall make an order for the grant of a tenancy comprising such property, at such rent and on such other terms, as are hereinafter provided.
(2) Where such an application is made in consequence of a notice given by the landlord under section twenty-five of this Act, it shall not be entertained unless the tenant has duly notified the landlord that he will not be willing at the date of termination to give up possession of the property comprised in the tenancy.
(3) No application under subsection (1) of section twenty-four of this Act shall be entertained unless it is made not less than two nor more than four months after the giving of the landlord's notice under section twenty-five of this Act or, as the case may be, after the making of the tenant's request for a new tenancy."
It will be observed that under subsection (3) such an application must be made not less than two months after the making of the tenant's request for a new tenancy. So this application was made too soon: it ought not to have been made until 2nd October. We do not know why it was made so soon. The suggestion was made that both parties desired an early decision but there is no evidence or finding to that effect. The Appellants say that the Respondents have waived their right to object to the application having been made too soon. The Respondents deny this but their first argument is that the terms of this section are so peremptory that an application made at the wrong time is a complete nullity so that no agreement or waiver could save it.
To understand why this point is of crucial importance it is necessary to see what happened after 4th September. On 19th September the Respondents filed an answer to the application in which they stated the ground of their opposition to the grant of a new tenancy. That answer contained no reference to the application having been made too soon. On 30th September their solicitors wrote offering compensation as provided in the Act if the tenancy was terminated. On 9th October they wrote saying that it would be helpful to them if a special date could be fixed after 18th November. On 17th October the parties concurred in asking the County Court Registrar to fix a date after 1st December and this was done. Still the Respondents had made no reference to the applicant's application having been made too soon. If they had done so before 2nd December the Appellants could have made a fresh application within the time permitted by section 29.
Then on 5th December the Respondents' solicitors wrote that they had been advised by counsel to take a preliminary objection that the Appellant's application was invalid as having been made less than two months after the making of their request for a new tenancy. By that time it was too late to remedy this by making a new application.
The Respondents say and the Appellants admit that the Respondents' solicitors had not acquainted themselves with the terms of section 29 and were unaware until they received the advice of counsel that the Appellants' application had been made too soon. There is no evidence or finding as to when they received the advice of counsel but it was admitted that this was after 19th October. So we do not know whether they could have informed the Appellants before 2nd December.
This may seem a technical and unmeritorious defence, but there is no doubt that the Court has no power to dispense with these time limits if the defendant chooses to object at the proper time. The question is whether the defendant is entitled to agree not to insist on the observance of these time limits. The case for the Respondents is simple: they say that the provisions of section 29 prohibit the Court from entertaining any application made out of time even if both parties ask the Court to deal with it.
If the words of an Act are so inflexible that they are incapable in any context of having any but one meaning, then the Court must apply that meaning, no matter how unreasonable the result—it cannot insert other words. But such cases are rare because the English language is a flexible instrument.
Before examining the words in question I must observe that, apart from a case where contracting out is clearly not permitted, no case was cited in which statutory time limits of this kind have been so interpreted and for reasons which I shall give in a moment I think that it would be quite unreasonable so to interpret these words in this context.
The words are that no application "shall be entertained" unless it is made within the prescribed period. This cannot in my view be read literally. It must mean entertained by the Court and the natural meaning of entertained in this connection is taken into consideration. But the Court must take the application into consideration before it can discover whether or not it is out of time. Often this may seem clear at a glance but even so the applicant is entitled to be heard. And there may be a substantial point to decide. For example the date of the tenant's request may be questioned, or some more complicated point may arise like the point in Hodgson v. Armstrong [1967] 2 Q.B. 299. Such an expression as the "Court shall make no order" may be clear and inflexible but this expression is not. Once it appears that some modification of the natural meaning is necessary why should we be bound to stop there when our object is, as it always must be, to find out what Parliament must have, or must be supposed to have, intended.
In the first place this would be something which Parliament never seems to have done before. By the earlier Act dealing with the subject, the Landlord and Tenant Act 1927, the tenant was entitled in certain circumstances to claim a new lease and then he had to apply under section 4 in one class of case "not more than thirty-six nor less than twelve months before the termination of the tenancy". There were no words there which could be read as a direction to the Court prohibiting it from entertaining a claim made out of time; the section simply says "if a claim is made in the prescribed manner". I would find it impossible to interpret these sections as preventing the Court from dealing with a claim made out of time if both parties asked the Court to do so. And in the sphere of limitation of actions there are many cases cited in this case by Sachs L.J. where very strong words have not...
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