Transcold Refrigeration Ltd -v- Cooltech Refrigeration (NI) Ltd
| Jurisdiction | Northern Ireland |
| Judge | Mr Spence |
| Judgment Date | 08 April 2022 |
| Neutral Citation | BT/54/2020 |
| Court | Lands Tribunal (Northern Ireland) |
| Date | 08 April 2022 |
LANDS TRIBUNAL FOR NORTHERN IRELAND
LANDS TRIBUNAL AND COMPENSATION ACT (NORTHERN IRELAND) 1964
BUSINESS TENANCIES (NORTHERN IRELAND) ORDER 1996
IN THE MATTER OF AN APPLICATION
BT/54/2020
BETWEEN
TRANSCOLD REFRIGERATION LIMITED – APPLICANT
AND
COOLTECH REFRIGERATION (NI) LIMITED – RESPONDENT
Re: Premises at 7(b) Springhill Road, Carnbane Industrial Estate, Newry
Lands Tribunal – Henry Spence MRICS Dip Rating IRRV (Hons)
Background
1. Mr John Fegan had formed the company known as Transcold Refrigeration Limited (“the
applicant”) in 1988, operating as a sole trader providing refrigeration transportation supply
facilities. In 1997 he entered into a lease with Hillspring Properties Ltd for the occupation of
unit 7(c) Springhill Road, Newry, which was located in the Carnbane Industrial Estate. At that
time the business was operated by family members.
2. The original premises at 7(c) Springhill Road, were expanded in or around 2003 to incorporate
the adjoining property, 7(b) Springhill Road (“the reference property”).
3. In 2008 the “Transcold” business was transferred to Mr John Fegan’s son, Mr Paul Fegan, for a
“six figure sum”. Sometime before that, during the tenure of Mr John Fegan, the premises
had been subdivided, with Transcold Refrigeration Limited (“the applicant”) occupying unit
7(c) and Cooltech Refrigeration (NI) Limited (“the respondent”) occupying the reference
property. The managing director of the respondent company is Mr Konrad Fegan, a brother
of Mr Paul Fegan.
4. It was not disputed that up until 2019 the relationship between the two companies was based
on trust and informality and there was no written sub-lease or agreement between the
companies for the occupation of the reference property by the respondent.
5. The existing leasing arrangements with Hillspring Properties Ltd continued up until 4th
September 2018 when Hillspring Properties Ltd and the applicant signed a new lease for the
occupation of unit 7(c) and the reference property, for a term of 10 years, at an annual rent of
£20,400 per annum.
6. After the new lease came into force in 2018 the informal arrangements between the parties
continued on a similar basis as before, until there was a breakdown of the relationship
between family members and hence the companies in 2019. The applicant considered itself
to be the landlord of the respondent and on the 26th May 2020, the applicant served a
“Notice to Determine” the respondent’s tenancy of the reference property, on grounds
contained in Article 12 of the Business Tenancies (Northern Ireland) Order 1996 (“the Order”)
and in particular grounds contained in Article 12(1)(d) “alternative accommodation” and
12(1)(g) “own use”.
7. Prior to 2019 there had been a “trust” relationship between the parties and the informal
working arrangements included:
(i) The applicant paid all of the outgoings for the reference property and unit 7(c),
and the respondent paid a proportionate amount of all bills in respect of rent and
common facilities.
(ii) The businesses assisted each other where possible.
(iii) There were shared services such as electric, phone and mobile phone facilities.
Expenses were shared and money passed between the companies on an informal
basis.
8. Mr John Fegan gave evidence that there was a verbal agreement between himself and the
respondent that the respondent would pay the rent for the reference property to the
applicant, on the undertaking that the applicant would pay the rent for the entire premises to
Hillspring Properties Ltd. This agreement had continued up until 2019.
9. The parties had agreed that there were three issues to be decided by the Tribunal:
(i) Was the applicant the respondent’s landlord?
(ii) If the applicant was a landlord, which was denied by the respondent, then was the
applicant’s Notice to Determine premature.
(iii) If the Tribunal finds (i) and (ii) in favour of the applicant, has the applicant
demonstrated sufficient intention to use the reference property in the manner
required under the Order.
Procedural Matters
10. Mr Keith Gibson BL, instructed by Luke Curran & Co Solicitors, represented the applicant. The
respondent was represented by Ms Lisa Moran BL, instructed by Donnelly Neary & Donnelly
Solicitors. The Tribunal is grateful to counsel for their helpful submissions.
11. The Tribunal also received written and oral evidence from Messrs John, Paul and Konrad
Fegan. Evidence was also provided by Mr Brian Clarke and Mr Garrett O’Hare. Mr Clarke and
Mr O’Hare are experienced Chartered Surveyors. The Tribunal also received evidence from
Mr David Harshaw, manager of the applicant company. The Tribunal is grateful to all for their
submissions.
The Statute
12. Article 2 of the Order defines landlord:
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