Khan v McRoberts and another

Defendant purporting to determine tenancy and ejecting claimant from flat – Whether claimant previously surrendered tenancy – Whether presumption of undue influence rebutted – Judge finding tenancy unlawfully determined – Appeal dismissed The claimant was the tenant of a flat, granted to him by the first defendant. The first defendant held the lease of the whole premises, which contained a restaurant on the ground floor. The second defendant subsequently took over the running of the restaurant. In March 1995 the claimant was ejected from the flat. The second defendant claimed that, on 24 May 1995, he had become the tenant of the premises by virtue of being granted a lease of the premises by the first defendant. The second defendant claimed that in order to facilitate that grant, the claimant had agreed to assign his lease to the first defendant. It was claimed that the claimant had therefore been lawfully ejected. The claimant contended that he was ejected without prior notice and in violation of his lease and his statutory rights. At a hearing of preliminary issues, the judge held that it had not been shown on the evidence that the claimant had surrendered his rights as a tenant and that the claimant’s tenancy had accordingly been unlawfully determined. The second defendant appealed. Held: The appeal was dismissed. 1. The judge was entitled to conclude that it had not been shown on the evidence that the claimant had entered into an agreement to assign his tenancy. 2. Even if it had been shown that the claimant had entered into an agreement to surrender his tenancy, a presumption of undue influence arose out of the relation of trust and confidence between the parties. There was no evidence on which it could be concluded that the presumption had been rebutted. In fact, the transfer was manifestly disadvantageous to the claimant and there had been no attempt by the first defendant to ensure that the claimant had been properly advised. Kelvin Rutledge (instructed by Amphlett Lissimore) appeared for the claimant; Oriel Hinds (instructed by CM Atif & Co) appeared for the second defendant; the first defendant did not appear and was not represented. Thoms Elliott, barrister