Sevenarts Ltd v Busvine
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SALMON,MR JUSTICE BAKER |
| Judgment Date | 09 October 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1009-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 1968 |
[1968] EWCA Civ J1009-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: His Honour Judge Herbert, M.C., Q.C. - Westminster County Court)
Lord Justice Harman
Lord Justice Salmon and
Mr Justice Baker
In the Matter of the Landlord and Tenant Act 1954
- and
In the Matter of the Premises known as Rear of 34 and 36 Davies Street (Ground Floor) London w.l:
Mr. T. IAN PAYNE (instructed by Messrs. Herbert Oppenhminer, Matnan it Vandyk) appeared on behalf of the Appellants (Applicants).
Mr. PATRICK GARLAND (instructed by Messrs. Cole & Matthews, Beckenham, Kent) appeared on behalf of the Respondent.
ThiS iS an interesting application under the Landlord and Tenant Act, 1954. The property In question is a shop and basement in Davien Street, Mayfair, and the rents are in the thousands, as one might expect from the locality. The story begins with a lease of December, 1953, by Sir Bernard Docker, the then freeholder, to one Aage Thaarup, a well known milliner, The demise consleted of the rear of the ground floor and basement in Davies Street, and the terra was to run to Christmas, 1967. Mr. Thasrup assigned that term to Mrs. Busvine, the respondent in this case, as that she became the leaseholder. In December of 1955 she created an underlease of part of that property in favour of a hairdresser. That terra was to run, one day short of the full term, to the 24th December, 1967. A month or so later the hairdresser assigned the underlease over to the applicants, so that the underlease is held by the applicants (as they are called) in these proceedings, and their terra ended just before Christmas, 1967.
Now at all material times Mrs. Busvine, although she was the means landlord, did not in fact own the beneficial interest in the property. The assignment was made to her because the landlord was unwilling to permit an assignment purely to a company, for reasons which we all know, and so Mrs. Busvine was put in as a matter of convenience. She did not pay any part of the head rent? she did not pay a premium. everything was paid by this company, Gina Davies limited. Mrs. Busvine was the holder of I think 88 (or so) per cent, of the shares in the company, and its managing director. there was no document to show the existence of that trust, nor any resolution to that effect appearing on the company's records until quite recently. But I do not think, having regard to the facts as found by the County Court judge, that there is any significance in that.
On the 24.th July, 1967, notice of termination was served on Mrs. Busvine in respect of the head lease, but the landlord, in that notice, as he was bound to do, declaring his wishes, saidthat he would not object to a new tenancy. Moved by that, Mrs. Busvine on the 31st July, 1967. served notice to terminate on the applicants. That is the controversial document in this case and I must read portions of it. "I, Georgina Elary Buavine, of 25 Brooke Mews" (and so on), "landlord of the above-mentioned premises.—that is, 34/36 Davies Street—"hereby give you notice terminating your tenancy on the first day of February 1968". There is a request for possession and a reference to whether the tenant will be willing to give it; and it adds, "I would oppose an application to the court under Part II of the Act for the grant of a new tenancy on the ground that on the termination of your current tenancy I intend to occupy the premises for the purposes of my business to be carried on by me".
Now it is said that that was an untrue notices Mrs. Busvine. although the managing director, was not carrying on the business: she did not intend to carry on an extended business: it was intended that the company, which was already carrying on the business under her management, should extend itself and carry on the extended business in the whole of the property including the part included in the underlease. It is said that that notice Is a bad- notice.
To complete the facts, the applicants, served a counter notice on the 15th September. That said: "With reference to your notice pursuant to the Landlord and Tenant Act …. dated 31st July 1967 to terminate our tenancy of the above-named premises we give you notice that we are not willing to give us possession of the above-named premises on the date mentioned in the said notice"; and so issue is joined. Then there are some further particulars given.
On the 28th November the applicants made application to the County Court for a new tenancy that is Document 9. I do not think I need go through the details of that. Mrs. Busvine opposed that application, and the County Court Judge held that the opposition succeeded. His so held because he hold that the notice to terminate given by Mrs. Busvine was a good notice inspite of the defects In its form. He In a reserved judgment said He "Well, of course it is quite true that one did not intend to carry on the business and she was not carrying on the business herself at all"; but nevertheless on the true construction of the Act he held that the notice was a good notice arid that therefore is no new tenancy should be granted to the applicants and it is against that that the applicants appeal. They say. It is all very well but it remains the fact that the notice was not a true is notice and therefore we are not bound by it and therefore no effective notice has been given at all". It is now admitted that the result of that would be that everything was still to play.
Now Part II of the Landlord and Tenant Act, 1954, is of course familiar territory. It Is very difficult, I find to carry the scheme of it in one's head, but I do not think that I need read very much of it for this purpose. One knows that under: section 24 the tenancies which would have expired on Christmas Eve of 1967 did not come to an ended on that date but were continued and that such a tenancy, being a business tenancy, continues until it is terminated in a way that the Act provides. either by the grant of a new lease or by a good notice of termination.
Under section 25 the landlord may terminate a tenancy by a notice "in the prescribed form": and so on. That is the machinery which is said to be put In motion by this notice of Mrs. Busvine's. Such a notice is not to have effect, under subsection 5, unless it requires the tenant to give a counter-notice saying whether he will or will not give up possession, and that was done? and under (6) it is not to have effect unless it states whether the landlord would be willing to grant a new tenancy and, if so, also states on which of the grounds mentioned In section 30 of this Act he would do so".
I can leave out everything until I think section 30,because section 30 shows the grounds which are mentioned in section 25 (6), and those grounds are seven in number. The first three, (a), (b) and (c), as is well known, deal with defaults on the part of the tenant, (d) is about alternative accommodation.(e) is about a tenancy which is mixed up with other tenancies and, thereby preventing the landlord from developing his property in a proper manner, (f) is in these terms: "that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises…. or a substantial part of those premises…. and that he could not reasonably do so without obtaining. possession…." (s) (which in the one here material) is "subject as hereinafter provided, that on the termination of the current tenancy the landlord intends to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence". Mrs. Busvine says that it is under that that she is entitled to terminate the tenancy, and the dispute is that it is not in fact true to say that she intends to occupy for the purpose of her business or to carry on her business there.
But one must add to that a very awkward section, No. 41, sub-sections 1 and 2. Section 41 (1) deals with a case where a tenancy is held on trust; and that I think is nothing to do with this because this tenancy, that is to say the tenancy of the applicants, is not held on trust. Section 41 (2) is in these terms "Where the landlord's interest is held on trust"-which I take to be a tautologies way of saying "Where the landlord is a trustee". I think that is what it must mean - "the references sub-in paragraph (g) of section (1) of section 30 of this Act to the landlord shall be construed as including references to the beneficiaries under the trust or any of them …." That must mean, I think, that, in a case where the landlord is a trustee. in places where you refer to the landlord you refer to the landlord or his cestui que trust, because it "includes" that. That is to say, it may refer either to the one or to the other. If you read it in that way, (c) will say this that within two months of the making of the tenants request for a new tenancy the landlord or the cestui que trust may give notice to the tenant that he will oppose an application to the court for the grant of a new tenancy; and the grounds must be stated. But theresult of that is that the ground can be either that toe landlord or his cestui que trust interred to carry on a new business, and consequently I think it is true to say that the notice, if you work it out, was a notice which did include the truth of the matter because the alternative person, namely, the cestui que trust, was the person who intended to carry on the business. But in any event I do not think that is perhaps the crucial point in the case, because the authorities show that this counter-notice is in the nature of a plea. It is really in the nature of a kind of statutory notice to quit, and provided that it indicates (so the cases say) with sufficient clarity to the tenant or the...
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