Claim for possession — Tenant insolvent — Order for possession set aside — Second action — Lease ended by forfeiture — Statutory tenancy — Tenant’s appeal allowed
This was the appeal of Mr Stanley George Odder from the judgment of Judge Granville Smith at Watford County Court granting possession of No 33, Park View, Hatch End, Middlesex, to the landlord, Mr Clarence Stanley Smith.
Mr HH Harris (instructed by George W Bower & Sons) appeared for the appellant; Mr JFE Stevenson (instructed by Mr EC Randall) represented the respondent.
Mr Harris said that the appellant took a lease of the house in 1940. In September, 1944, while he was in the Army, the rent fell into arrears. In the following month the respondent obtained an order for possession in default of appearance. But the appellant later applied to, and obtained from a Master in Chambers an order setting aside the writ and he remained in possession holding over as a statutory tenant, the house being within the Rent Act limits. In December, 1948, the respondent started a fresh action for possession, the appellant having been adjudicated bankrupt, and his trustee disclaiming the lease. The County Court Judge held that the setting aside of the writ in the first action revived the lease, and the appellant renewed his legal position as a contractual tenant. This, argued Mr Harris, was an error in law.
Mr Stevenson, in reply, maintained that the Judge was right in the construction he put on the events of 1944. The effect of them was to give the appellant relief against forfeiture. He also submitted that the trustee in bankruptcy was entitled to disclaim a statutory tenancy.
The Master of the Rolls, giving judgment allowing the appeal, said it was a clear case, and the decision of the County Court Judge could not stand. There could be no question but that, in the circumstances, the issue of the first writ was an unequivocal act of election by the respondent to forfeit the lease, and what the appellant got was nothing more or less than the setting aside of the order under which he became liable to pay rent, and mesne profits, and to deliver up possession. The respondent said that the effect of the order, and payment made under it by direction of the Master, was to be treated as equivalent to a granting of relief against forfeiture for non-payment of rent.
It was nothing of the kind. If the Master had been told that his order gave the appellant relief against forfeiture his Lordship said he ventured to think that he would have been very much surprised. Relief against forfeiture was a serious and rather technical matter. It could be given only under the conditions and terms which the law prescribed; and to grant such relief would vest in the tenant something which forfeiture had taken out of it. Forfeiture was not a thing to be spelled out of the conduct of the parties irrespective of the conditions laid down by the law. The respondent’s case was that the writ and the forfeiture were set aside and the lease was reinstated. If that were right the trustee in bankruptcy would be entitled to disclaim the lease.
His Lordship said that in his opinion, the lease came to an end by forfeiture, was never reinstated, and never vested in the trustee.
Asquith and Denning LJJ agreed. The appeal was allowed, with costs, in both Courts.
