Kingswood Estate Company Ltd v Anderson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE UPJOHN,LORD JUSTICE RUSSELL |
| Judgment Date | 30 July 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0730-2 |
| Date | 30 July 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0730-2
In The Supreme Court of Judicature
Court of Appeal
From his honour Judge Glazebrook
Bromley County Court
Lord Justice Willmer
Lord Justice Upjohn and
Lord Justice Russell
MR. LIONEL BLUNDELL, Q. C. and MR. V. G. DWELLINGS (instructed by Messrs Van Sandau & Co., Agents for Messrs Latter & Willett, Bromley, Kent) appeared as Counsel for the Appellants.
MR. MICHAEL ALBERY, Q. C. and MR. MERVYN HEALD (Instructed by Messrs Wallers, Bromley, Kent) appeared as Counsel for the Respondent.
This is an appeal from a Judgment of His Honour Judge Glazebrook given on the 9th January, 1962, at Bromley County Court whereby he dismissed a landlord's claim for possession of certain premises at 46 Crescent Road, Bromley, of which the defendant was in occupation. He also gave Judgment in favour of the defendant on her counterclaim for the sum of £ll. 4s.2d. in respect of rent alleged to have been overpaid. This appeal relates only to the claim and there is no appeal with regard to the counterclaim. It is conceded that the defendant is entitled to recover on her counterclaim in respect of rent overpaid.
The plaintiffs are a company carrying on business in the ownership and development of properties. Their managing director and the moving spirit of the company is a certain Mr. Young. Mr. Young is also a partner in a firm of estate agents called "Youngs" who were in the habit of acting as agents for the plaintiffs. About the year 1954 the plaintiffs acquired a property which included a house at 91, Beckenham Lane, which they desired to develop. The defendant, who is an elderly widow, was residing at 91, Beokenham Lane, and had been resident there for about 45 years. It is accepted that the house was within the limits of the Rent Restriction Acts. It is also accepted that at any rate up to the year 1958 the defendant was residing there as a contractual weekly tenant. The defendant had living with her an invalid son. The evidence did not disclose what the nature of the son's ailment was nor how old he was. In order to enable the plaintiffs to develop their Beckenham Lane property it was clearly necessary for the defendant and her son to be removed from No. 91. Accordingly, on the 5£ September, 1958. the plaintiffs served on the defendant a notice to quit. It is accepted that the result of receiving that notice was that the defendant thereupon became the statutory tenant of the house This being so, the plaintiffs before they could obtain an order for possessionof the house would have to satisfy Section 3 of the 1933 Act. This meant in the circumstances of the present case that they would have to satisfy the Court that suitable alternative accommodation was available for the defendant. By sub-section 3 alternative accommodation is deemed suitable if it consists "of premises to be let as a separate dwelling on terms which will in the opinion of the Court afford to the tenant security of tenure reasonably equivalent to the security afforded by the principal Acts in the case of a dwelling house to which those Act apply"
Mr. Young. though he said that he was well aware of his responsibilities under the Rent Restriction Acts, did his beat to persuade the defendant to move out of 91. Beckenham Lane, and considerable correspondence passed between the parties. In the course of this correspondence the almoner of the hospital where the defendant's son was a patient wrote to Mr. Young on her behalf. The defendant also sought advice from the Legal Advice Bureau of the Bromley Conservative and Unionist Association, who also wrote to Mr. Young on behalf of the defendan. The learned Judge in the course of his Judgment quoted at considerable length from the correspondence passing between the parties, and this, I think, renders it unnecessary for me to refer further to the letters. The defendant was in no way disposed to be uncooperative, but was willing enough to move provided that alternative accommodation was found for her. In the course of time she herself joined in the search for alternative accommodation. Eventually in the summer of 1959 the defendant herself found a property at 46 Crescent Road, where there was accommodation available for her. She informed the plaintiffs of this property, and in due course they entered into a contract to purchase it subject to the right of a tenant already in occupation of part of it. Having purchased this property the plaintiffs offered accommodation therein to the defendant*. The defendant and her son in fact moved to 46, Crescent Road, on the 9th September, 1959.
Before the defendant and her son mowed, however, two vitally important conversations took place, the evidence with regard to which was as follows. The defendant said that on an occasion shortly before the move she and her daughter, Mr. Brown, had a. meeting with Mr. Young and his assistant, Mr. Cook. The learned Judge's note of the defendant's evidence with regard to that conversation reads: "Young had most of the talk. He said when I got there it would be for the rest of my life and he knew I should be happy". A little later the note records her assaying: "I would not have got out of 91 at all if I had thought they were going to give me notice at 46". Mrs Brown was able to fix the date of that meeting as being about throe weeks before the move took place, that is to say somewhere about the middle of August. The note of her evidence reads: "Young said to me: 'As soon as your mother is settled she is there for life'".
With regard to the other conversation evidence was given by Mr. Lettington, another daughter of the defendant. I quote the learned Judge's note of her evidence substantially in full. She is recorded as having said: "In September, 1959. when mother was moving to No. 46. on Saturday before she moved, I phoned Youngs. I spoke to a young lady and asked to speak to Mr. Young, A man came to phone, I assumed it was Mr. Young. I said he had found woodworm in house. He said no need to worry because he had had it attended to. Also he said he did not want any fuss about moving at this stage because if she did not take this place ha would not find her another one. I asked him what about a tenancy agreement. He said there was no need for a tenancy agreement as mother was there for the rest of her life. I said I wanted my mother and my brother covered because of her age and his health. He said they would be there for the rest of their lives, whichever was the longer. I told my mother about this conversation. It was the Saturday before the Wednesday she moved in. Cross-examination: I said I wanted a tenancy agreement so that she would not be movedabout again at her age. I believed Young was making a promise. I trusted him. I was foolish not to got it in writing".
With regard to these conversations the learned Judge said at p. 7 of his Judgment: "There is some conflict between Mr. Young and the defendant and her daughters as to what was said and I have no hesitation in accepting the evidence of the defendant and her daughters, Mrs Brown and Mr. Lettington, in preference to Mr. Young's evidence where there is any conflict. As to Mr. Young, I have seldom been more unfavourably impressed by any witness. He seemed to me to say in the witness box whatever he thought suited his case at a particular Moment and as he is not a particularly intelligent man, he frequently contradicted himself. He is one of hose people to whom truth in the ordinary sense of the word means absolutely nothing. His letters are insincere, full of humbug and deliberately vague and evasive". With regard to this assessment of Mr. Young's evidence it should be remarked that the notice of appeal asked in the alternative for an order for a new trial on the ground that the plaintiffs did not obtain a fair trial, one of the grounds for this contention being that the learned Judge's criticism in his Judgment of the plaintiffs. witnesses was extravagant and unwarranted. At an early stage of the hearing before this Court, however, this ground of appeal was specifically abandoned.
Having regard to the learned Judge's acceptance of the evidence given by the defendant and her daughters, I think it is clear that this case must be approached on the basis that the defendant and her son moved into Crescent Road on the faith of Mr. Young's representations. The defendants case as to the effect of these representations was put in throe alternative ways in her defence. First, it was alleged that the effect wag to create a tenancy in favour of the defendant having the like incidents as a statutory tenancy. Secondly, it was alleged that the plaintiffs were estopped from denying that the defendant wasentitled to the same protection at 46 Crescent Road as if she was a statutory tenant. Thirdly, by an amendment for which leave was obtained at the trial, it was alleged that the plaintiffs orally agreed to grant to the defendant a tenancy of 46 Crescent Road until the death of the survivor of the defendant and her son. The plaintiffs' case, on the other hand, was that the defendant moved into 46 Crescent Road on terms that she was to become a contractual weekly tenant entitled to no more than four weeks' notice. In support of this contention some reliance was placed upon the fact that she was supplied with, and used, a rent book of the type ordinarily used for a weekly tenancy. If the plaintiffs' case be right, it is plain that when the defendant agreed to move to 46 Crescent Road she was making a very bad bargain. For she was sacrificing the valuable asset that she had in her security of tenure at 91 beckenham Lane, and was getting very little in exchange for it.
The learned Judge decided in favour of the defendant on the basis that there was an agreement whereby the defendant was to occupy 46...
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