Villa D'este Restaurant, Ltd v Kemseth George Burton (Respondent.)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MORRIS,LORD JUSTICE ORMEROD |
| Judgment Date | 13 March 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0313-3 |
| Date | 13 March 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0313-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed).
Lord Justice Morris.
Lord Justice Ormerod.
MR. RICHAEL D. SHERRARD, instructed by Messrs. Hunters, appeared for the Appellants (Plaintiffs).
MR. J.T. PLUME. instructed by mesers. Asher, Fishman & Co., appeared for the Respondent (Defendant).
: I will ask Lord Justice Morris to read the first judgment.
By a lease dated the 28th September, 1954, the Appellants demised to the Respondent Flat No. 4 at No.1 Lancaster Gate in London. The Term ws for five years from the 29th September, 1954. The rent was to be the yearly inclusive rent of £393, 11s. Od. payable by equal quarterly payments in advance on the usual quarter days. The Respondent agreed to pay by way of further rent a sum equal to the amount by which the general and water rates payable should exceed those payable for the year 1954/55. The flat ws unfurnished, but certain services were provided by the Appellants. For this reason the lease was a contract to which the Furnished Houses (Rent Control) Act, 1946 applied and as the premises were in a district in which the Act was in force the contract was one that could be referred to the appropriate Rent Tribunal (see section 2(1) of the Act). The appellants applied to the Rent Tribunal (which was the Paddington Rent Tribunal) for an increase of rent. The Tribunal increased the rent from £393. 9s.6d to £452. 12s.6d. They so fixed the rent for the period "from the 21st December, 1955 until the expiration of the Act." The date of notification to the parties to the contract and to the local authority of the decision of the Tribunal was the 28th December, 1955. The local uthority is charged with the duty of preparing a register and of keeping it up to date. The date of entry in the Register of the rent as increased by the Tribunal was the 30th December, 1955.
Pursuant to the decision of the Tribunal, the Appellants demanded rent at the increased rate and demanded it as from the 21st December, 1955. The Respondent refused to pay and put forward as his reason for refusal that he was not obliged to pay any more than he had contracted to pay by the terms of his lese. If he is wrong as to this, no point is taken that the date as from which the increase is payable is other than the 21st December, 1955. The claim made by the Appellants in the Country Court ws for £15. 7s.6d. – being the amount underpaid if between the 21st December, 1955 and Lady Day, 1956, the rent payable was at the rate of £452. 12s.6d.
The form of reference by the Appellants to the Tribunal is not before us. The Respondent appears to have been represented by his solicitor at the hering before the Tribunal. If his present contention is correct, then the proceedings before the Tribunal were a waste of time, for there could be no point in fixing an increased rent "from 21st December, 1955" if no increase could be imposed, and if contractual terms due to cover the period down to the 29th September, 1959 could not be varied and if there was no question of any variation by agreement. No proceedings by way of certiorari have been taken. But it hs not been submitted that there is any bar which prevents the Respondent from presenting his argument.
The case raise therefore the question whether the Tribunal had power to do what they did and whether the effect and result of what they did was that the Respondent because obliged in law to pay rent at the increased figure determined by the Tribunal.
The learned Country Court Judge has based his judgment upon the supposition that the matter was before the Rent Tribunal or was dealt with by the Tribunal pursuant to the provisions of section 2, sub-section 4 of the 1946 Act. That sub-section reads: "Where on any reference of a constract, the rent whereunder includes payment for services, the tribuna. are of opinion that it would be proper that the rent payable for the premises should include an amount in respect of increase since the 3rd September, 1939, in the cost of prividing such services, and are also of opinion that in all the circumstances a rent higher than the rent payable under the contract might properly be chargeable for the permises in order to include an amount in respect of such increase, they may approve a rent higher by not more than such amount as they think reasonable in that respect."
The judgment of the learned Judge was that section 2, sub-section 4 does not permit a landlord to impose an increase of rent under sub-section 4 during the currency of an existing contract of tenancy: he accordingly rejected the Plaintiffs' claim; but the judgment appears to proceed on the basis that the position would have been different had the application to the Tribunal been under section 2, sub-section 3. Mr. Plume, for the Respondent, has however very fairly stated and admitted that both parties understood that the application had been made under section 2, sub-section 3. The appeal was accordingly argued before us on that basis.
The duty of preparing a registaer and of keeping it up to date is imposed upon the local authority by section 3(1) of the Act. Section 3(2) is in the following terms: "The register shall be so prepared and kept up to date as to contain, with regard to any contract under which a rent is payable that has been approved, reduced or increased under the last foregoing section (being a contract relating to premises situated in the area of the local authority), entries of (a) the prescribed particulars with regard to the constract; (b) a specification of the premises to which the constract relates; and (c) the rent as approved, reduced or increased by the tribunal, and, in a case in which the approval, reduction or increase is limited to rent payable in respect of a particular period, a specification of that period."
We were furnished with certified copies of certain entries in the Register. The Register is called a "Register of Constracts referred to the Rent Tribunal". An entry made on the 29th October, 1949 in respect of this flat recorded the "Names and Adresses of parties to the Contract referred to the Tribunal." The Appellants were the lessors and a Mrs. Tettersall was the lesses. The services then provided were as under the current lese. They were: "Cleaning and lighting of halls, passages and staircase, lift maintenance, supply of hot water, centrat heating, services of caretaker". It was recorded that the rent was reduced from £413. 15s.6d per annum to £339. 0s.0d. per annum from the 29th October, 1949. In an entry made on the 31st May, 1952, the only differences were that the lessee was a Mrs. J. Bentala and that the rent was incresed from £339. 0s.0d. per annum to £371.13a.6d. per annum from the 29th May, 1952. In an entry made on the 25th April, 1953, Mrs. J. Bentala still being then the lessee, the only differences were that the rent was increased from £371.13a.6d. per annum to £393. 9s.0d. per annum from the 23rd April, 1953.
It is provided by section 4, sub-section 1(a) of the Act as follows: "Where the rent payable for any premises is entered in the register under the provisions of this Act, it shall not be lawful to require or receive-(a) on account of rent for those premises in respect of any period subsequent to the date of such entry, (or, in a case in which a particular period is specified, in repsect of that period), payment of any sum in excess of the rent so entered". At the time when the Appellants, on the 28th September, 1954, granted a lease to the Respondent the "rent payable" for Flat 4 was entered in the Register. The entry was that which had been made on the 25th April, 1953, as referred to above. Accordingly it was not lawful to require an amount of rent more than £393. 9s.0d. (The figure of lls. in the Leas rather than 9s. was doubtless a slip).
The question now arises as to what is the result in law of the decision of the Tribunal in December, 1955 which cme about as the result of an application made by the Appellants under section 2, sub-section 3.
That sub-section begins with the words "Where the rent payable for any premises has been entered in the register in accordnace with the privisons hereinafter contained it shall be lawful for the lessor or the lessee or the local authority to refer the case to the Tribunal for reconsideration of the rent so entered on the ground of change of circumstances". By the privisions of section 2, sub-section 1, the "lessor" and the "lessee" are defined. They may refer to the tribunal "a contract to which this Act applies". The opening words of sub-section 3 refer to entry in the register "in accordance with the provisions hereinafter contained". That is a reference to section 3. If the requirements of section 3 are read into and carried into section 2, sub-sections, then that sub-section provides in the register so s to contain with regard to any constract under which a rent is payable that has been approved, reduced or increased entries of the names and addresses of the parties to the contract referred to the Tribunal (see paragraph 2 of the Second Schedule of the "prescribed particulars"), then it is lawful for the lessor or the lessee to refer the case to the Tribunal for reconsideration of the rent os entered on the ground of change of circumstances. What then is the "case"? one possible view is that, as the scheme of the Act is to refer contracts, the "case" that may be referred for reconsideration of the rent entered in the register is the case of a constract that has previously been referred. But in December, 1955 the contract between the Appellants as "lessors" and the Respondent as "lessee" had never been before the Tribunal. The name of the...
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