Possession order — Partnership lease — Appeal by one partner
These were appeals by Miss Kathleen May Povey, of the Paddock, Cubitt’s Yacht Basin, Chiswick, Middlesex, against orders of Judge Alun Pugh at Bloomsbury County Court, the effect of which was to give possession of office premises at 9, Southampton Place, London, WC, to London County Freehold & Leasehold Properties, Ltd, the landlords.
Miss Povey appeared in person. Mr LI Stranger-Jones and Mr Donald Keating (instructed by Messrs Arthur Blok & Channon) represented the landlords, and Mr E Dennis Smith (instructed by Messrs RC Bartlett & Co) appeared for Mr Harrison.
Miss Povey’s case was that in April, 1951, she entered into partnership with Mr William Charles Harrison, stationer and supplier of office equipment, of Princes Avenue, Woodford, Essex. They carried on business first as Harco Secretarial Services, and later as Povey Secretarial Services. On July 5, 1954, they moved from Fetter Lane, EC4, to Suite 11, 9, Southampton Place, Mr Harrison having taken a lease of the premises under his own name expiring in 1958. In February, 1955, a quarrel took place as a result of which Mr Harrison left the premises and started a business of his own at 81a, Gray’s Inn Road, Holborn. Miss Povey asked the landlords to transfer the tenancy to her, but they would not do so. She had refused to leave the premises, but the County Court judge had held that the partnership between her and Mr Harrison had been dissolved in February, 1955, by mutual consent, and had ordered possession of Suite 11 to be given up to the landlords, who claimed that Mr Harrison had broken a covenant in the lease by parting with possession to her. The judge had also ordered the payment of £148 arrears of rent and costs. It was admitted that the rent claimed had not been paid.
Giving judgment, DENNING LJ, said that while Mr Harrison paid the rent for the premises, Miss Povey did most of the work under the terms of the partnership and was entitled to all the profits up to £416 and 90 per cent above that figure. If the partnership was dissolved, she was entitled to all the assets and goodwill. In substance it was Miss Povey’s business. Mr Harrison, who was granted the lease of the suite at 9, Southampton Place, was not entitled to assign the lease or to part with possession without the consent of the landlords. On February 25, 1955, he told Miss Povey that he was going to other premises and would ask the landlords to let him give up the lease with vacant possession on March 31, 1955, and when Miss Povey asked the landlords to transfer the tenancy to her they refused.
The County Court Judge found that the partnership was dissolved on February 25, 1955, but he (his Lordship) did not agree. Mr Harrison could not bring the partnership to an end without the agreement of Miss Povey. She was ready to agree on condition she took over the tenancy of the premises, but that condition was never satisfied, and there was never a dissolution. He (his Lordship) could see no reason why the Court should order a dissolution of the partnership. It would not be just and equitable to bring it to an end unless Miss Povey had been guilty of some breach which went to the root of the agreement. The judge had found no such breach.
As regards the premises, the landlords never released Mr Harrison from his obligations under the lease, though they were willing to do so if he gave them vacant possession. He did not do so, and accordingly the lease continued. The landlords now sought to forfeit the lease, alleging that Mr Harrison had parted with possession of the premises without their consent. They did not give any particulars or evidence as to how Mr Harrison was alleged to have parted with possession. If the partnership between Mr Harrison and Miss Povey was still in existence, then Mr Harrison had retained possession by his co-partner. The landlords had no right to re-enter or to forfeit the lease and no right to evict Miss Povey from the premises. With regard to rent, the position was that the judge had made an order against Mr Harrison for the payment of arrears from February, 1955, to June, 1956. In his (his Lordship’s) view, Mr Harrison was still liable to pay the rent, and he could not transfer this liability to Miss Povey by moving himself to another office.
He (his Lordship) would allow Miss Povey’s appeal in both actions. The order in the case of Harrison v Povey would be set aside and judgment would be entered for Miss Povey with costs. The order giving the landlords possession would also be set aside and Miss Povey would have her costs paid by the landlords.
HODSON and MORRIS LJJ agreed, and the appeals were allowed with costs. Applications on behalf of both Mr Harrison and the landlords for leave to appeal to the House of Lords were refused, and an application by Mr Dennis Smith for Mr Harrison’s case to be remitted to the County Court judge for the trial of matters that had not been dealt with was also refused.
[NOTE -‑ This case affords yet another example of the way in which a tenant who may be very anxious himself to give up possession sometimes finds that his obligations to others prevent him in law from doing so if they are unwilling to leave.]
