Landlord and Tenant Act 1954, Part II — Application for a new tenancy of premises used as a fish-and-chip shop — Opposition by landlord on ground mentioned in section 30(1)(g) — Question as to landlord’s firm and settled intention — Documents not disclosed on discovery — Complaint as to admission in evidence — Question as to necessity for corroborative evidence of intention — Appeal by tenants from county court judge’s decision fails
in this case, who was aged 64 at the date of the county court hearing, had
retired from business but had become bored and wished to be active again — He
had had previous experience of the retail fish-and-chip trade and of other
retail outlets — It was clear law that the burden of proof was on him to establish
that the case was one which came within section 30(1)(g) — An essential
ingredient was proof of a firm and settled intention to occupy the holding for
the purpose of a business to be carried on by him therein — When challenged at
the trial about the genuineness of his intention and resolve to resume working
the landlord produced documents showing that he had made inquiries from
manufacturers about the prospect of his purchasing and installing equipment
connected with the retail sale of fish and chips — Such documents, however, had
not been disclosed pursuant to an order for discovery and complaint was made on
appeal that the county court judge should not have admitted them in evidence or
taken them into account in arriving at his conclusion as to the landlord’s
fixed and settled intention
Appeal rejected this complaint and, indeed, agreed with the judge’s assessment
that the landlord’s failure to disclose at the proper time was a point in his
favour, on the ground that if he had intended to deceive he would have hastened
earlier to produce the documents to the other side — The court also rejected a
submission that some corroborative evidence of the landlord’s intention was
essential — The judge here had paid some regard to the documents, but the judge
was entitled, on the sworn testimony of the landlord alone, to come to the
conclusion that the burden of proof had been discharged
appeal based on alleged promissory estoppel was abandoned; the judge below had
made a specific finding that no promise had been made — A complaint about the
judge’s order for costs was rejected — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by tenants, Ejaz Mirza and Zulekka Ajus Mirza, from the decision of
Judge Hordern, at Clerkenwell County Court, dismissing the appellants’
application for a new tenancy of business premises at 141 Newington Green Road,
London N1. The landlord, Tofallis Nicola, resisted the tenants’ application on
the ground set out in section 30(1)(g) of the Landlord and Tenant Act
1954.
Philip
Sapsford (instructed by G H Gelberg & Co) appeared on behalf of the
appellants; Rajinder Sahonte (instructed by Nicos & Co) represented the
respondent landlord.
Giving
judgment, RUSSELL LJ said: On March 10 1989 at the Clerkenwell County
Court His Honour Judge Hordern made an order whereby he dismissed the tenants’
application for a new tenancy of business premises at 141 Newington Green Road,
London N1. The premises involved in the application consisted of a fish-and-chip
shop. The tenants, who were respectively called Ejaz Mirza and Zulekka Ajus
Mirza, had acquired their interest by an assignment of a lease on July 16 1984.
The lease expired by effluxion of time on September 29 1987, so that at the
date of the assignment there was a little over three years of the lease to run.
Prior to the
expiration of the lease, and in accordance with all the formalities required by
the Landlord and Tenant Act 1954, the tenants applied for a new tenancy. The
landlords indicated that they were not prepared to grant a new tenancy, and in
due course the application for a new tenancy was made to the county court.
The landlords
resisted it on one ground, that which is to be found in section 30(1)(g)
of the 1954 Act. So far as material, that section reads:
The grounds on
which a landlord may oppose an application under subsection (1) of section
twenty-four of this Act are . . .
(g) subject as hereinafter provided, that on the
termination of the current tenancy the landlord intends to occupy the holding
for the purposes, or partly for the purposes, of a business to be carried on by
him therein, or as his residence.
As has been
pointed out to this court, the burden of demonstrating that the case is one
which comes within section 30(1)(g) is upon the landlord. This landlord,
Mr Nicola, at the date of the hearing before His Honour Judge Hordern, was 64
years of age. He had experience in the trade of retailing fish and chips and,
indeed, in other retailing outlets. He had been the owner of shop premises in
addition to those which were the subject-matter of this application. However,
it seems that in 1984 he had ceased to trade personally and had retired but,
during the subsequent three years immediately preceding the expiration of the
lease at 141 Newington Green Road, he told the judge, he had become bored and
wanted to start active work again, perhaps with the assistance of his family.
Mr Nicola gave
evidence on his oath to that effect and the judge accepted his evidence and
said so in his judgment.
Prior to the
hearing there had been discovery of documents on both sides. The landlord had
not disclosed to the tenants that which he was to contend before the judge had
taken place in the months preceding the termination of this tenancy. Pursuant to
his intention to take over the business himself upon the expiration of the
lease, the landlord had made some inquiries from various manufacturers of
catering equipment about the prospect of his purchasing and installing at 141
Newington Green Road various pieces of equipment connected with the retail sale
of fish and chips. When he was challenged in the witness box by counsel for the
tenants as to the genuineness of his desire to resume working, the landlord
produced a number of documents supporting his contention that he had a firm,
fixed and genuine resolve to resume working from 141 Newington Green Road.
The judge
admitted in evidence the documents to which I have referred. Complaint is made
that he should not have done so. In my judgment, the judge was entitled to
admit the documents in evidence, even though they had not earlier been
disclosed as they should have been. Complaint is further made that the judge
took the documents into account in assisting him in arriving at the conclusion
that the landlord had a fixed and firm intention to occupy the demised
premises.
As to that,
the judge said:
It is clear
therefore that either Mr Nicola was preparing to deceive the court or he was
making inquiries; either he was making genuine inquiries or misleading the
court.
The criticism
of Mr Nicola’s failure to disclose goes very far in his favour. If he were
intending to deceive the letters would have been thrust upon the other side. On
the contrary they have only now been produced. I can take that into account.
With that
assessment of this supporting evidence I, for my part, agree and, in my
judgment, the judge was perfectly entitled to regard the letters as supporting
the testimony of the landlord.
What is said
on behalf of the appellant tenants is that in a case such as this the judge
should look for corroboration of the landlord’s assertion that he desires to
occupy the premises for the purposes of a business. That may very well be a
desirable state of affairs, and in this case the judge did look for and find
such corroboration in the letters to which I have referred. But, for my part, I
am quite unable to accept the submission made by Mr Sapsford on behalf of the
tenants that there is in some way an obligation on the judge not to accept
resistance to an application for a new lease on the grounds disclosed in
section 30(1)(g) unless there is in existence some corroborative
material of the landlord’s assertions.
In my
judgment, provided that the judge asks himself the right question — which is
whether it is established that there is in fact at the date of the hearing a
fixed and firm intention on the part of the landlord to occupy the premises for
business purposes — he is entitled, on the sworn testimony of the landlord
alone, to come to the conclusion that the burden of proof has been discharged.
There was here a finding of fact in favour of the landlord. The judge saw and
heard him give evidence, he had regard to the supporting documents and he came
to the conclusion that the test was satisfied. I can see no reason why this
court should come to any other conclusion, particularly as we do not enjoy the
advantage of having seen and heard the witnesses.
In an
accompanying note of his judgment the judge emphasised that he accepted that Mr
Nicola genuinely intended to run the fish-and-chip shop himself and was able to
do so, by virtue of his experience, physically and financially.
There was
another ground of appeal that was to be ventilated before this court relating
to an alleged promissory estoppel. The tenants contended before the judge that,
when they took over this lease in 1984, they received an undertaking from the
landlord that, upon its expiration, he would permit them to continue running
the business, albeit at an increased rent. The judge made a specific finding
that no such promise was made by the landlord and he reiterated that that was
his finding in the note that accompanied his judgment. Realistically, Mr
Sapsford abandoned that ground of appeal.
Finally, there
is a complaint made, and it figures in the notice of appeal, as to the order
for costs that the judge imposed. He took the view that, as the landlord had
succeeded, he was entitled to his costs but, because the tenants were legally
aided, he made the normal order that the effect of the order for costs should
be that there should be no enforcement of it without leave of the court. We see
nothing wrong with the principle for that order for costs and we cannot and do
not interfere with it.
This appeal,
in my judgment, fails and must be dismissed.
SIR
ROUALEYN CUMMING-BRUCE agreed and did not add
anything.
The appeal
was dismissed. An application for costs against the Legal Aid Fund was
adjourned for 10 weeks. Registrar of Civil Appeals was instructed to inquire
whether the Fund would wish to resist the making of an order against it at the
conclusion of that period.