Landlord and tenant — Leasehold Reform, Housing and Urban Development Act 1993 — Section 42 notice — Whether failure to specify genuine premium renders notice invalid — Whether county court has jurisdiction to determine validity of notice
In June 1990 the respondent tenant
acquired the unexpired term of an underlease of a flat (‘the flat’). On expiry
of the underlease on December 22 1964 the tenant continued to hold over as a
statutory tenant. In September 1994 the tenant served a notice on the landlords
under section 42 of the Leasehold Reform, Housing and Urban Development Act
1993, seeking a new lease of the flat specifying a premium of £100. The
landlords sought a declaration from the court that the tenant was not entitled
to a new lease on the grounds, inter alia, that the section 42 notice
was invalid since the tenant had failed to provide the particulars required by
section 42(3), namely a genuine figure that he was prepared to pay. On behalf
of the tenant it was contended that the court had no jurisdiction to determine
the validity of the notice by reason of section 46.
challenge is raised as to the validity of a tenant’s notice it would be absurd
to hold that such a challenge can never be determined. Those who drafted
section 42 of the 1993 Act in mandatory terms could not have intended that a
tenant’s notice which failed to comply with its provisions would be ‘validated’
simply by the service of a counternotice. The county court has the power to
determine the validity of the tenant’s notice. The provisions of section 42,
although mandatory, clearly anticipate, in so far as they relate to premiums
payable, a process of negotiation and, if the parties are unable to agree
terms, an application to the leasehold valuation tribunal. If parliament had
intended that the section 42(3)(c) proposal was to be ‘genuine’, ‘realistic’,
‘sensible’ or ‘after a survey and valuation’, it could have easily said so. It
is considered that all that was contemplated was that a proposal was to be made
as part of the particulars. If the offer is woefully inadequate and as a
consequence the landlord incurs the costs of a valuation, then there is
provision in the 1993 Act and regulations for the leasehold valuation tribunal
to order costs to be paid as a condition of a new lease.
The following cases are referred to in
this report.
Betty’s Cafés Ltd v Phillips Furnishing
Stores Ltd [1959] AC 20; [1958] 2 WLR 513; [1958] 1 All ER 607; [1958] EGD
92; (1958) 171 EG 319, HL; affirming [1957] Ch 67; [1956] 3 WLR 1134; [1957] 1
All ER 1, CA
Cresswell v Duke of Westminster [1985] 2
EGLR 151; (1985) 275 EG 461; 25 RVR 144, CA
Mutual Place Property Management Ltd v Blaquiere [1996] 2
EGLR 78; [1996] 28 EG 143
Stradbroke (Earl of) v Mitchell [1991] 1 EGLR
1; [1991] 03 EG 128 & [1991] 04 EG 132
This was an application by the Honourable
Charles Gerald John Cadogan Viscount Chelsea and Cadogan Estates Ltd for a
declaration that the tenant, Hugo Francis Morris, was not entitled to a new
lease pursuant to section 42 of the Leasehold Reform, Housing and Urban
Development Act 1993.
Anthony Radevsky (instructed by Lee &
Pembertons) appeared for the applicants; Gary Cowen (instructed by Wood
Winfield) represented the respondent.
Giving judgment, MR RECORDER KALLIPETIS
QC said: The applicants are the landlords, ‘the landlords’, of premises
known as Flat 32, 5 Sloane Court East, London SW3, (‘the flat’). Mr Morris, the
respondent, was registered as the tenant of the flat on June 12 1990 under the
remainder of an underlease dated March 21 1969 for a term of 30 years. The
underlease has now expired (on December 22 1964) and Mr Morris is holding over
as a statutory tenant.
Mr Morris, by a notice dated September 6
1994 served under section 42 of the 1993 Leasehold Reform, Housing and Urban
Development Act (‘the 1993 Act’) seeks a new lease of the flat.
The landlords, by this application, seek
a declaration that Mr Morris is not entitled to a new lease on two grounds. The
second of which, namely that he is not a qualifying tenant as the property was
not his principal home, is no longer pursued. I have only to decide the first,
which is a claim by the landlords that the section 42 notice is invalid.
Issues
There are two principal issues I have to
decide. The first is one of jurisdiction, raised by the tenant and, the second,
is the validity of the section 42 notice, raised by the landlords. I deal with
each of these in turn.
Court’s jurisdiction
Mr Gary Cowen, who appeared on behalf of
Mr Morris, raised this as one of his last points, but it is logical that I
should deal with it first.
In effect, the argument is analogous to
that advanced by counsel for the respondent in a case decided by Judge Hallgarten
QC in this court, Mutual Place Property Management Ltd v Blaquiere
[1996] 2 EGLR 78 albeit that the subject-matter of that decision was whether an
initial notice was rendered invalid by the omission of the plan of the property
required by section 13(3) of the 1993 Act and the effect of the provisions of
para 15(1) of Schedule 3.
In summary Mr Cowen’s argument is as
follows. He states, quite unashamedly, that there is no tribunal which can
determine the point taken by the landlords as to the validity of the tenant’s
notice. He argues that this application is made under section 46 of the 1993
Act and therefore the court’s powers are limited to those set out in that
section. The provisions of section 46 define the powers of the county court to
determine the validity of a tenant’s notice, but solely in respect of any
challenge to the tenant’s right to a new tenancy as described in section
45(2)(b). The provisions of section 46 are based upon the premise that a
tenant’s notice has been served and therefore, save for the limited attack upon
the tenant’s right to a new tenancy, the validity of the tenant’s notice is
established by the service of the landlords’ counternotice. The fact that
section 46 does not expressly refer to any other challenge to the validity of
the notice is said to be intentional in that the provisions of section 46 are
only concerned with whether the tenant had a right to serve a notice and
not whether it was a valid notice. Therefore the section presupposes
that a valid tenant’s notice has been served in response to which the landlords
have served a counternotice.
I was referred to paras 4.25, 4.41 and
4.42 of the Special Bulletin on the 1993 Act Supplement to Hill &
Redman, in which the learned authors draw attention to the fact that the
1993 Act is silent as to the effect of failure to include necessary details at
all. They also point out that the landlords’ avenues for complaining about the
form of the tenant’s notice are limited to challenging the entitlement of the
tenant to serve a notice under the provisions of section 46. Effectively it
seems to me, Mr Cowen is adopting that commentary and it is the basis of his
argument.
In further support of his argument, he
points out that neither the landlords’ counternotice nor the covering letter
were marked ‘without prejudice’. Thus, he concludes, the service of the
landlords’ counternotice either waived any defect in the tenant’s notice or
deemed it to be valid or the landlords are estopped from raising the validity
of the tenant’s notice at all.
There are two matters to be resolved. The
first is whether as a matter of law there is no method by which a challenge to
the validity of the tenant’s notice, other than the limited avenue set out in
section 46. The second is whether on the facts of this case, the landlords have
waived any right they may have to challenge the validity of the tenant’s
notice.
The provisions of section 90 of the 1993
Act are quite clear, they read as follows:
90.– (1) Any jurisdiction expressed to be
conferred on the court by this Part shall be exercised by a county court.
(2) There shall also be brought in a
county court any proceedings for determining any question arising under or by
virtue of any provision of Chapter I or Chapter II or this Chapter which is not
a question falling within its jurisdiction by virtue of subsection (1) or one
falling within the jurisdiction of a leasehold valuation tribunal by virtue of
section 91.
Section 91 expressly confers upon the
valuation tribunals all questions concerning the terms of acquisition including
the amount of compensation payable under section 37 and the amount of costs
payable by any person by virtue of any provision. Thus it appears to me that
the structure of the 1993 Act is that all matters concerned with the terms on which
a new tenancy should be granted are expressly reserved to the valuation
tribunal and all questions as to the tenant’s right to make an application are
expressly reserved to the county court.
In Mutual Place Property Management
v Blaquiere Judge Hallgarten QC dealt with a similar point at pp79L–80B.
The court was referred to the same Supplement to Hill & Redman
where the editors advance a similar argument in respect of sections 13 and 22
of the 1993 Act, which Judge Hallgarten QC refused to accept. I fully accept
that the provisions of section 46 are clearly based upon the premise that a
valid tenant’s notice has been served, otherwise the exercise would be
pointless. However, that is a far cry from saying that a tenant’s notice which
fails to comply with the mandatory provisions of section 42 can never be
challenged as to its validity because there is no tribunal empowered to hear
such an application.
In my judgment, if a challenge is raised
as to the validity of a tenant’s notice (other than that provided for in
section 46), it would be absurd to hold that such a challenge can never be
determined. It clearly would make a mockery of the provisions of section 42,
because those who drafted section 42 of the 1993 Act in mandatory terms could
not have intended that a tenant’s notice which failed to comply with its
provisions would be ‘validated’ simply by the service of a counternotice. Quite
often the court is faced with a preliminary point as to the validity of a
particular notice or application, which it determines before going on to deal
with the substance of the application itself. I am satisfied that not only is
there jurisdiction to hear such an application, but the county court is the
proper tribunal to hear it. To hold otherwise would completely destroy the
purpose of the 1993 Act and ignore the provisions of section 90. It seems to me
that it cannot be right that parliament intended that section 46 should be the
only power of the court to determine the validity of such notices. Judge
Hallgarten QC so held in Blaquiere and the Court of Appeal in Earl of
Stradbroke v Mitchell [1991] 1 EGLR 1 decided that the court did
have jurisdiction to hear and determine a challenge to the validity of a notice
to quit on the ground of fraud.
I therefore hold that the county court
has power to determine the validity of the tenant’s notice which has been
expressly raised by the landlords in the counternotice. I turn now to the other
arguments raised by Mr Cowen on the question of whether this is a section 46
application and whether the landlords are prevented from raising any other
question as to the validity of the tenant’s notice. It is worth noting that
there are no prescribed forms in the 1993 Act or the 1993 Regulations for
either the tenant’s notice or the landlords’ counternotice.
The challenge to the validity of the
section 42 tenant’s notice was first made by the landlords’ solicitors by
letter dated September 23 1994. That letter, while acknowledging receipt of the
tenant’s notice, referred to it in these terms:
What purports to be a notice of claim
under section 42 of the above Act. We do not accept that the purported notice
is effective under the terms of section 42.
Therefore the landlords specifically
challenged the validity of the tenant’s notice but, without prejudice to their
contentions, enclosed a notice under paras 2 and 4 of Schedule 2 to the
Leasehold Reform (Collective Enfranchisement and Lease Renewal) Regulations
1993 (‘the 1993 Regulations’). Those regulations, inter alia, provide
for the payment of a deposit as well as evidence of the claimant’s right to a
lease under the 1993 Act.
Mr Cowen argues that the letter of
November 11 1994 was not served without prejudice, in contrast to the letter of
September 23 1994 and therefore that counternotice is deemed acceptance of the
validity of the section 42 notice, alternatively, it amounts to a waiver of any
defect in the section 42 notice. In my judgment, this application is an
application by the landlords for a declaration that the respondent is not entitled
to a new lease on two grounds:
(1) that the section 42 notice was not
valid because the sum proposed was not a genuine or bona fide proposal and
therefore failed to comply with the provisions of section 42 subsection (3)
thus was invalid and of no effect; and
(2) that the respondent was not a
qualifying tenant under the provisions of section 39 of the Act.
Of these, only the latter can properly be
said to be an application under section 46.
There is no doubt that what the landlords
were saying from the outset was that they challenged the validity of the
tenant’s notice, but without prejudice to that right, they were serving a
request for information and a deposit and in due course would be serving a
counternotice. As far as I am concerned there are two questions for the court
to determine. First whether the tenant’s notice is valid, second, whether the
tenant had a right to a new lease on the date of the tenant’s notice. Both
questions have to be answered and as neither the form of a counternotice nor an
application under section 46 is prescribed by the 1993 Act or the 1993
Regulations, it does not seem to me to matter how the questions to be
determined come before the court. The fact that the landlords have used a form
which is headed ‘Section 45 Landlords Counter Notice‘, provided the
tenant is under no mistake as to what it is the landlords are saying.
I can deal with the other points that Mr
Cowen takes quite shortly. Although the letter of September 23 itself does not
expressly state that it is without prejudice, it seems to me that this argument
has no substance. The service of the request under paras 2 and 4 of Schedule 2
to the 1993 Regulations is expressly stated to be without prejudice to the
landlords’ primary contention that the tenant’s notice is invalid. Furthermore,
although the letter of November 11 1994 makes no mention of the counternotice
being served ‘without prejudice’, the form of the counternotice itself
expressly challenged the validity of the notice for three reasons which are set
out on the face of the notice. It is clear that the landlords were taking a
preliminary point that the respondent’s section 42 notice was not valid. In my
judgment, therefore, there is no substance in the argument that the landlords
have waived any right to argue the validity of the tenant’s notice or are
otherwise estopped from so doing.
Is the respondent’s notice a valid
notice?
The provisions of section 42 of the 1993
Act are expressed in mandatory terms:
(3) The tenant’s notice must —
…
(c) specify the premium which the tenant
proposes to pay in respect of the grant of a new lease under this Chapter and,
where any other amount will be payable by him in accordance with any provision
of Schedule 13, the amount which he proposes to pay in accordance with that provision;
The argument advanced by Mr Radevsky on
behalf of the landlords is simply this: on his own admission the respondent has
not specified the premium which ‘he proposes to pay for a new lease under the
1993 Act’ because on his surveyor’s advice he has merely put in what is
described in the evidence before me as ‘a nominal figure’.
As a matter of fact, in the circumstances
of this case, if I were to hold that the tenant’s notice was invalid, Mr
Morris’ rights are not affected in that he can serve a fresh notice. However,
the importance of this argument to the landlords is that under the 1993
Regulations there are certain binding procedural rules for lease renewals.
Under para 2 of Schedule 2, the landlord can require a deposit to be paid which
is ‘£250 or 10% of the amount proposed in the section 42 notice whichever is
the greater’. Under the provisions of subpara (3) of Schedule 2, the deposit
may be used as security for the costs incurred by the landlord if the claim
does not proceed. Mr Radevsky tells me and I accept, that it is often the case
that tenants who hold rights under the 1993 Act enter into negotiations, but if
at the end of the day the price required for the new lease is too high or they
are unable to dispose of the lease to a third party, they simply withdraw from
the negotiations without any loss to themselves, whereas the landlord may well
have incurred considerable costs in dealing with the tenant’s application.
I should also refer to para 9 of Schedule
2 to the 1993 Act which expressly provides that a section 42 notice is not
invalidated by any ‘inaccuracy in any of the particulars required by section
42(3)’. On the evidence before me it is quite clear that what was put in the
section 42 tenant’s notice, namely a sum of £100, was not a genuine or
even a realistic offer of a premium in return for a new lease. The
statement of Mr Morris para 11 says in terms:
The surveyor advised my solicitor that
there was no need at that stage to carry out the necessary valuation under the
Act, and recommended that the insertion of a formal nominal figure was
acceptable. I believe he suggested £100 as appropriate.
In view of that statement, the answer put
in by Mr Morris in this application would appear to be inaccurate. Para 3(a)
purports to say that the sum of £100 was ‘a genuine and bona fide proposal and
there were reasonable grounds for believing that would be the premium payable
under the 1993 Act’. Quite clearly on Mr Morris’ own admission, the £100 was
nothing other than a nominal figure to open the negotiations. It is interesting
to note that the two letters written by Mr Morris’ solicitors dated November 22
1996 and May 16 1997 concede that Mr Morris would be expected to open the
bidding at a considerably higher figure.
The alternative basis upon which the
answer relies is that if the sum of £100 was not a genuine bona fide proposal
(as I find on Mr Morris’ own admission it was not) the notice is not thereby
rendered invalid and of no effect. It is on the basis that all that has been put
in the tenant’s notice is a nominal figure, that Mr Radevsky advances his
argument. He relies first of all upon the decision of the Court of Appeal in Cresswell
v Duke of Westminster [1985] 2 EGLR 151 at p 152B where Lord Donaldson
MR said:
Mr Neuberger says that that para does not
help Mr Cresswell, because this is not an inaccuracy; it is a complete
omission. I think that that involves a misconstruction of para 6(3), because it
is talking about inaccuracies in the particulars as a whole. The fact that there
is an omission in part of the particulars does create an inaccuracy in the
particulars as a whole. A failure to give any particulars at all would not, I
should have thought, have been an inaccuracy in the particulars as a whole; it
would simply be an omission.
The court in Cresswell was
concerned with the Leasehold Reform Act of 1967 where under Part I a notice is
required to be given by the tenant to claim the right of enfranchisement under
the provisions of the 1967 Act. The wording of Part I of the Schedule to the
1967 Act with which the court was concerned was in similar but not identical
terms to the 1993 Regulations with which I am concerned. Under the 1967 Act
para 6(3) provides:
The notice shall not be invalidated by
any inaccuracy in the particulars required by this paragraph or any
misdescription of the property to which the claim extends.
Having dealt with Mr Neuberger’s argument
the Master of the Rolls went on to say as follows:
But there is undoubtedly a problem as to
what is meant by ‘any inaccuracy’. Mr Wood for the tenant boldly states that it
really does not matter: anything that is accurate fully complies with the
statute; anything that is inaccurate, whether it is due to fraud, innocent
misrepresentation or negligence is all just an inaccuracy. For my part, I am
not prepared to accept that for one moment.
… All we do know is that the notice did
not represent the facts in the respects which I have mentioned. The learned
county court Judge said that this was an inaccuracy within the meaning of the
paragraph and should not invalidate the notice. For my part, I entirely agree
with that view. It may be that there is a line to be drawn, but I would
hesitate to define it. During the argument Neill LJ drew my attention to the
fact that the words ‘any inaccuracy in the particulars required by this
paragraph’ are followed by ‘any misdescription of the property’, and I would
agree with the suggestion that both phrases are concerned with the same degree
of deviation from full accuracy.
In the end I suspect that a court has to
ask itself: ‘Looking at the facts as they were and what was stated in the
notice, can this fairly be said to be an
the facts?’ Where we draw the line I do not know, and I doubt whether it is in
anybody’s interests that I should attempt to draw that line. Many cases will
answer the question themselves on their own facts. In my judgment this case
answers itself on its own facts, the answer being that given by the county
court Judge.
I should draw attention to the
distinctions between the provisions of the 1967 Act with which the Court of
Appeal were dealing and the 1993 Act which falls for me to determine. Para 9(1)
of Schedule 12 to the 1993 Act provides that:
The tenant’s notice shall not be
invalidated by any inaccuracy in any of the particulars required by section
42(3) or by any misdescription of any of the property to which the claim
extends.
(2) where the tenant’s notice —
…
(b) fails to specify any property which
he is entitled to have so demised to him,
the notice may, with the leave of the
court and on such terms as the court may think fit, be amended so as to exclude
or include the property in question.
The emphasis is supplied to highlight the
distinction between the two Acts.
I should also add here that both counsel
are agreed that this is not a situation where an amendment is either sought or
could remedy the position.
The decision of the Court of Appeal in Cresswell
has been criticised by the authors of Leasehold Enfranchisement, 2nd ed,
para 5-04 where the authors specifically state that, in their view, a failure
to give one or more of the required particulars (as opposed to a mistake in
doing so) is an omission and not an inaccuracy and so renders the notice
invalid. None the less it is binding upon this court.
Mr Radevsky argues forcefully that on the
facts of this case the tenant quite clearly was failing to give the particulars
required by section 42(3) because he was not specifying a premium which he was
proposing to pay but, on his own admission, merely inserting a formal nominal
figure to commence negotiations and to preserve his rights under the 1993 Act.
This Mr Radevsky argues, amounts not to a mistake but an omission, which
renders the tenant’s notice invalid.
Mr Radevsky further relies upon the
judgment of Lord Denning MR in Betty’s Cafés Ltd v Phillips
Furnishing Stores Ltd [1959] AC 20. That case concerned a notice made under
section 26 of the Landlord and Tenant Act 1954 and in particular the grounds
required to be specified by virtue of section 30. The landlord in that case
opposed an application for a new tenancy on the grounds that he intended to
reconstruct the premises. Having analysed the purpose of the notices under the
1954 Act, at p50 Lord Denning said:
Such being the true interpretation of
these notices, I am of the opinion that they must be given honestly and
truthfully. They are not to be regarded merely as pleadings preparatory to a
trial — in which parties, I regret to say, sometimes deny the truth, or refuse
to admit it, if it suits their plan of campaign. These notices are intended to
be acted upon before there is a trial at all. On receipt of such a notice the
tenant has to decide his course of action — for instance, whether to accept the
alternative accommodation that is offered, or whether to accept the landlord’s
word that he intends to occupy the premises himself, or as the case may be. In
every case he has to decide whether to apply for a new lease or not. It would be
deplorable if a landlord could be allowed to get an advantage by
misrepresenting his state of mind or any other fact. Suppose he said in his
notice: ‘I intend to reconstruct the premises,’ or ‘I intend to occupy for the
purposes of my own business,’ when he, in fact, had no such intention at all.
On the face of such a statement, the tenant might be induced to abstain from
applying to the court for a new tenancy, because he would think it no use to do
so. He would know that he would have to pay the costs if he lost. Just imagine
the tenant’s consternation if at the end of the tenancy, after he had left, the
landlord did not reconstruct the premises or occupy them himself, but
straightaway let in someone else.
At the end of his speech, at p51 Lord
Denning concluded:
In short, it comes to this: the landlord
must honestly and truthfully state his ground in his notice and he must
establish it as existing at the time of the hearing.
I should make it quite clear that there
is no suggestion at all in this case that Mr Morris was acting dishonestly or
fraudulently. If this were a case where the landlords were falsely claiming
that the tenant had no right under section 45(2)(c), and as a consequence were
making an application under section 47(1), then perhaps the passage from Lord
Denning’s speech might be more apposite. However, it seems to me that what is
contemplated by the 1993 Act is that the tenant should, if he qualifies and so
wishes, initiate a process of negotiation which may result in a new lease being
offered and accepted. At some stage during those negotiations, no doubt both
the landlords and the tenant would seek the advice of valuers and/or surveyors.
The provisions of section 42, although mandatory, clearly anticipate, in so far
as they relate to premiums payable, a process of negotiation and, if the
parties are unable to agree terms, an application to the valuation tribunal. If
parliament had intended that the section 42(3)(c) proposal was to ‘genuine’,
‘realistic’, ‘sensible’ or ‘after a survey and valuation’, it could have easily
said so. I consider that all that was contemplated was that a proposal was to
be made as part of the particulars. If the offer is woefully inadequate and as
a consequence the landlord incurs the costs of a valuation, then there is
provision in the 1993 Act and regulations for the valuation tribunal to order
costs to be paid as a condition of a new lease. What the landlords are
effectively seeking to do is to obtain a larger sum as security for
those costs. I can understand the reasons for this, but I am not certain that
the interpretation contended for by Mr Radevsky, is right.
The difficulty that I can foresee if I
acceded to Mr Radevsky’s argument is this. Supposing the tenant, on advice, had
put in a figure of £50,000. In view of the likely premiums, and I make it quite
clear that I am not asked to nor do I have jurisdiction to decide such in this
application, or indeed at all, £50,000 is unlikely to be the premium for a new
lease of the flat. Figures in excess of £100,000 have been conceded by Mr
Morris’ solicitors but the precise figure is of no consequence. The difficulty
I can foresee is this. If a figure were put in the tenant’s notice which the
landlord considered was too low, a landlord could apply for the same
declaration as the landlords do here on the same basis. Such an application
would of necessity involve expert evidence as to ‘true value’ and possibly,
‘reasonable offer’. The provisions of the 1993 Act make it quite clear that
parliament was intending that matters concerning the premium to be paid (and,
therefore, by necessary implication, value) should not be the province of the
county court, but the valuation tribunal. Therefore it seems to me that if I
were to accede to Mr Radevsky’s argument it would in effect be vesting the
county court with jurisdiction to enter into the sort of debate which
parliament has expressly excluded from the terms of its jurisdiction.
One can imagine that if a figure in the
instant case of £10,000 to £20,000 or even £50,000 were put forward it could
still be argued on the basis of the evidence that had been placed in my bundle
that the correct premium is likely to be in the region of £300,000 and that therefore
any figure which is substantially lower than that is not a genuine sum which
the tenant is proposing to pay and thus the notice is invalid because the
proposed premium is not merely an inaccuracy but amounts to an omission.
I fully accept Mr Radevsky’s argument
that the alternative basis of ascertaining the sum which the landlord can
require the tenant to pay under the 1993 Regulations, thereby providing the
landlords with some additional protection as regards costs, can effectively be
circumvented by a tenant ensuring that any offer he proposes is less than
£2,500. However, that may be a matter for parliament and I do not consider that
is a sufficient ground for acceding to Mr Radevsky’s argument.
Therefore, tempting as it is at first
sight, on the facts of this case and on the basis of the admission that this
was merely a formal nominal sum, to hold that this is an omission not merely an
inaccuracy and thus the notice should be declared invalid, I do not think it
would be right for me so to find. It seems to me that the consequences of so
doing would involve the county court being embroiled in hearing expert evidence
as to what is the likely value or premium of any property in question in order
to determine whether the proposal put
other form of words that one would care to choose. It does seem to me that that
is not the purpose of this Act and certainly not the jurisdiction conferred
upon the county court.
For these reasons therefore, attractive
though Mr Radevsky’s argument is, I fear that I must reject it and in those
circumstances I dismiss this application.
I trust that this judgment is sufficient
for an order to be drawn for my signature, but if there are any other matters
which need to be argued before I make a final order, I will hear them on a date
which is convenient to counsel.
I apologise to the parties that, due to
pressure of work, this judgment has taken longer to deliver than I anticipated.
