West v Gwynne
| Jurisdiction | England & Wales |
| Date | 1911 |
| Court | Court of Appeal |
Landlord and Tenant - Lease - Covenant not to assign without Consent - Fine for Consent - Lease made before Commencement of Act - Retrospective Construction - Declaratory Order - Costs -
Sect. 3 of the Conveyancing and Law of Property Act, 1892, applies to all leases whether executed before or after the commencement of the Act, and, in the absence of express provision to the contrary, engrafts upon every covenant in any such lease against assignment or underletting without consent a proviso that no money shall be payable in respect of such consent. If a lessor refuses to give a consent except upon payment, the lessee is relieved from obtaining his consent and can make a valid assignment or underlease without it; but he is also entitled to bring an action for a declaration to that effect, in which costs will be given him though no relief is asked for beyond the declaration.
Andrew v. Bridgman [
Jenkins v. Price [
ACTION.
The plaintiffs were assignees of a lease dated July 31, 1874, made between the defendant and certain lessees whereby certain premises at Battersea were demised for the term of 94¼ years from March 25, 1874, at a yearly rent of 640l.
The lease contained a covenant by the lessees with the defendant that they, their executors, administrators, and assigns, should not without the consent in writing of the defendant, his heirs or assigns, at any time during the said term assign, underlet, or part with the possession of the premises thereby demised or any part thereof or the said lease.
The lease also contained a proviso for re-entry if default should be made in the performance of any of the lessees' covenants therein contained and the usual lessor's covenant by the defendant for quiet enjoyment.
In February, 1909, the plaintiffs applied to the defendant for his consent to a proposed underlease of part of the premises for the term of twenty-one years at a rent of 340l., but the defendant replied that he was only prepared to grant the plaintiffs a licence to underlet the said premises on condition that the defendant should thenceforth receive for himself one half of the surplus rental to be obtained by the plaintiffs in respect of the demised premises over and above the rent of 640l. payable under the lease.
This action was brought by the plaintiffs for (1.) a declaration that the defendant was not entitled to impose the condition and (2.) a declaration that in the events which had happened the plaintiffs were entitled without any further consent on the part of the defendant to grant the proposed underlease upon the terms approved by the defendant except the said condition.
The only question was whether s. 3 of the Conveyancing and Law of Property Act, 1892F1, applied to a lease executed before the commencement of the Act.
The action came on for hearing before Joyce J. on December 20, 1910.
Younger, K.C., and Ward Coldridge, for the plaintiffs.
Hughes, K.C., and R. E. Moore, for the defendant.
1911. Jan. 31. JOYCE J. In the year 1892 the Legislature was minded to prevent in future the exaction of a fine by the lessor for giving the lessee a licence to assign, and so s. 3 of the Conveyancing and Law of Property Act, 1892, was enacted. [His Lordship read that section, and continued.] The question now raised is whether the operation of this section must not by construction be restricted to cases where the lease was granted after the commencement of the Act.
It was contended on behalf of the lessee that this section was merely an amendment of s. 14 of the
On the other hand it was contended that inasmuch as it is not expressly enacted that s. 3 of the Act of 1892 is to apply where the lease is granted before the Act, its operation must on general principles be limited to cases where the lease was not in existence at the date of the Act, and reference was made to the principle enunciated by Lindley M.R. in these terms in Lauri v. RenadF4: “It is a fundamental rule of English law that no statute should be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary.” That statement no doubt is correct, for the Court is reluctant to construe a statute so as to render it retrospective, but a statute may have a retrospective operation though it is not expressly so enacted.
In the present case it is not contended that s. 3 of the Act of 1892 does more than prevent the future exaction of a fine upon granting the necessary consent, this being effected by enacting that as from the date of the commencement of the Act all leases shall be deemed to be subject to the provision mentioned in the section. In other words the lessor shall not in future exact a fine for his assent to an assignment unless it has been expressly stipulated that he should be able to do so. The section does not take away any accrued right of action, nor is there any interference with past transactions, nor does it affect, to my mind, anything which can very aptly be termed a vested right at all. The exacting of this fine for giving the consent may, perhaps, more correctly be called a privilege to require a payment in a certain contingent event than a vested right.
In Pardo v. BinghamF5 Lord Hatherley L.C. held the 10th section of the Mercantile Law Amendment Act to be retrospective, following Cornill v. Hudson.F6 He says: “The question is, first, whether there is an inconsistency in holding the 14th section to operate prospectively only, whilst the 10th is to be allowed to act retrospectively; and, secondly, whether on general principles the statute ought, in this particular section, to be held to operate retrospectively, the general rule of law undoubtedly being that, except there be a clear indication either from the subject-matter or from the wording of a statute, the statute is not to have a retrospective construction. That rule was laid down strongly in Moon v. DurdenF7, and the reasons given for the judgment in that case were approved of in Jackson v. WoolleyF8, where it was held that the 14th section was not retrospective. It is remarkable that in the reported judgments in that case there should have been no mention of Cornill v. HudsonF6, and I have not found any case in which Cornill v. HudsonF6 has been called in question. The reasons for the decision in that case are certainly very cogent, especially that the statute in some cases would not have any operation for fifty years or more, if it did not extend to persons who were at the time of the passing of the statute residing beyond the seas. Now, in the very case of Moon v. DurdenF9 Baron Parke did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and said that the question in each case was, whether the Legislature had sufficiently expressed an intention. In fact, we must look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the Legislature contemplated.”
The section with which we have to deal in this case is quite plain to every one but a lawyer. As a matter of fact s. 4 of this Act of 1892, in respect of the question whether it is retrospective or not, appears to me to stand on precisely the same footing as s. 3, and s. 4 has undoubtedly been applied in Wardens of Cholmeley School v. SewellF10 without any objection being taken on the ground that the lease upon which the question arose was one executed before the passing of the Act. And s. 14 of the Act of 1881, which is expressly made to apply to leases executed before as well as after the Act, has been applied to cases where not only was the lease executed but the breach of covenant conferring the power to re-enter occurred before the commencement of the Act.
The Legislature, I think, intended to prevent or put an end to something which, rightly or wrongly, was considered an injustice. In regard to that I may refer to what Fletcher Moulton L.J. says in Waite v. Jennings.F11 Looking at all the circumstances in reference to this enactment, and examining it in the way Lord Hatherley, in Pardo v. BinghamF12, says the statute must be examined, and considering the express generality of the provision, namely, “in all leases,” which I think is the same thing as if the statute had said “in every lease” without making any distinction between leases granted before and leases granted after the passing of the Act, upon the whole I come to the conclusion that this section was intended to apply to every lease, both existing and future, and in effect, as from the commencement of this Act of 1892, and in the absence of an express provision to the contrary, “to engraft,” using the words of Cockburn...
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Preliminary sections
...Lane (1856) 156 E.R 1042………………………………………………….....………..538 Webb v. Byng 1856, 69 E.R. 951…………………………………………………….....………….583 West v. Gwynne (1911) 2 Ch. 1 (C.A.)……………………………………….…......…………….475 West v. Offor & Ors. (1996) 8 N.W.L.R. (Pt. 466) 343………………………...................... .......................