Omar Parks Ltd v Elkington ; Ron Grundy (Melbourne) Ltd v Bonehevo
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE STOCKER,LORD JUSTICE BELDAM |
| Judgment Date | 08 July 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0708-4 |
| Date | 08 July 1992 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0660 |
[1992] EWCA Civ J0708-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HEMEL HEMPSTEAD COUNTY COURT
(HEARD AT WATFORD COUNTY COURT BY WAY OF TRANSFER)
(HIS HONOUR JUDGE ERIC STOCKDALE)
Royal Courts of Justice
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NORTHWICH COUNTY COURT
(MR RECORDER REES)
Royal Courts of Justice
Lord Justice Nourse
Lord Justice Stocker
Lord Justice Beldam
Lord Justice Nourse
Lord Justice Stocker
Lord Justice Beldam
92/0660
NO. 316/91
MR ANDREW ARDEN, Q.C., and MR JULIAN LYNCH, instructed by Messrs Lance Kent & Co. (Berkhamsted), appeared for the Appellant (Respondent).
MR TIMOTHY HOWARD, instructed by Messrs Tozers (Exeter), appeared for the Respondent (Applicant).
MR TIMOTHY HOWARD, instructed by Messrs Tozers (Exeter), appeared for the Appellant (Plaintiff and Applicant).
MR RICHARD QUENBY, instructed by Messrs Dixons (Northwich), appeared for the Respondents (Defendant and Respondent).
By the Mobile Homes Act 1983, Schedule 1, Part I, paragraph 5, the following term is implied in any agreement to which the Act applies:
"The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the court is satisfied that the occupier is not occupying the mobile home as his only or main residence."
The principal question arising on these appeals is whether that term requires the occupation of the home to be judged as at the date on which the site owner applies to the court or the date on which the application is heard and determined. Opposite decisions have been given in the courts below. So now we must resolve the conflict.
This is the only question arising on the appeal in Omar Parks Ltd v. Elkinqton. It is therefore convenient to consider that case first. Omar Parks Limited ("Omar Parks") is the owner of Beech Park, Chesham Road, Wigginton, near Tring, Hertfordshire, which is a protected site for the purposes of the 1983 Act. Mr Victor Elkington is the owner of the mobile home stationed on pitch 8 on that site. He purchased it for £21,500 on 10th September 1988. He also became the assignee of an agreement between the previous owners of the home and the predecessors in title of Omar Parks, under which he was entitled to station it on that pitch subject to the terms of the agreement and the payment of the pitch fee. It is agreed that that was an agreement to which the 1983 Act applied—see section 1(1)—and that by virtue of section 2(1) there was implied in it, amongst others, the term set out in paragraph 5 of Part I of Schedule 1 ("the implied term"). The home was some 14 years old and required repairs. Mr Elkington agreed to carry them out within 12 months. However, for reasons which need not be explored, it took him the best part of three years to complete the bulk of them at a cost of about £12,500.
On 25th July 1991 Omar Parks issued an application in the Hemel Hempstead County Court seeking possession of pitch 8 on the ground that Mr Elkington was not occupying the home as his only or main residence. The application was heard and determined by His Honour Judge Eric Stockdale on 22nd November 1991. The judge found that Mr Elkington was not occupying the home either as his only residence or as his main residence before 1st September 1991, but that he had been occupying it as his only residence from and after that date; in other words, that the occupation required by the implied term did not exist at the date of the application to the court but did exist at the date on which it was heard and determined. No appeal has been brought against that finding. However, the judge was of the view that it was the date of the application to the court at which the required occupation had to exist. He made an order for possession accordingly. Mr Elkington now appeals against that order, which has been stayed by agreement in the meantime.
The outcome of the question depends on the true construction of the implied term read with the other provisions of the 1983 Act. Part I of Schedule 1 sets out four implied terms entitling the occupier or the site owner, as the case may be, to terminate the agreement, the others being set out in paragraphs 3, 4 and 6. The term set out in paragraph 3 entitles the occupier to terminate the agreement by not less than four weeks' notice in writing. Those set out in paragraphs 4 and 6 entitle the site owner to terminate the agreement, in the former case"forthwith"and in the latter at the end of"a relevant period", if,"on the application of the owner, the court is satisfied etc."
The critical words in the implied term are"the court is satisfied that the occupier is not occupying". If those were the only words on which the question depended, it could not be doubted that the occupation must be judged as at the date on which the application is heard and determined. Such would be the plain and ordinary meaning assigned to the words by the double use of the present tense. The court cannot be presently satisfied of the present existence of a given state of facts before an application is heard. But it is argued that the words"on the application of the owner", coupled with the absurdities flowing from the contrary view, displace this plain and ordinary meaning. That argument was accepted by Judge Stockdale, the essence of whose decision was expressed thus:
"Mr. Blohm says it must relate to the date of the application, otherwise all the site owner can do is come to the Court and say: 'I've no idea if I will succeed on the day of the hearing, but will the Court please fix a date'. No one will know until the evidence is given on the day of the hearing whether the Respondent is occupying or not. It doesn't matter if he moved in on the day of the hearing. There would be chaos. I find this interpretation offensive—it is a strange way for the Court to proceed. It would be strange if the Court had to deal with tentative applications—'fix a date, we will then see if we have a case or not'. Generally speaking, the Courts determine disputes in existence on the day proceedings are commenced."
In my judgment these considerations are not sufficient to displace the plain and ordinary meaning of the critical words. In contrast with the occupier's entitlement under paragraph 3 to terminate the agreement by notice, the site owner's entitlement under paragraph 5 does not arise unless and until the court is satisfied in the terms of that paragraph, a satisfaction which can only be declared if and when an application is made to it. Since the site owner will be the party who wants the declaration to be made, it is natural to assume that the application will be made by him. In my view the words"on the application of the owner"do no more than recognise that state of affairs.
It is perfectly true, as was pointed out by Mr Howard on behalf of Omar Parks (he also appeared for the site owner in the other appeals), that if that is the only function of the words"on the application of the owner", they could just as well have been omitted. If a long experience of legislative drafting had brought with it a conviction that an Act of Parliament never included words of surplusage, that would no doubt have been a persuasive point. But that is not our experience and I for one do not complain of it. An emphasis of the obvious, unnecessary to a judge who has had the benefit of argument, may yet be welcome to a busy practitioner who has not. Moreover, as was pointed out by Mr Arden, Q.C., on behalf of Mr Elkington, there are other provisions of the 1983 Act of a like character, not only in paragraphs 4 and 6. Thus section 1(5) provides for the occupier to apply to the court if the site owner fails to comply with that section. More significantly, subsections (2) and (3) of section 2 each provide for the court to make an order"on the application of either party". I think that the wording of paragraphs 4, 5 and 6 was intended to achieve consistency with these other provisions. I doubt whether the words"on the application of the owner"were intended to have any temporal significance. If they were, they can only refer...
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