Tenant falling into arrears of rent – Landlord seeking possession order and monetary order for arrears – Tenant counterclaiming for breach of tenancy agreement – Judge making order for possession without order for costs or arrears – Judge refusing landlord’s appeal – Whether judge in error – Landlord’s appeal dismissed
The appellants, Rappaport and Fischer, let 17 Harlesden Gardens, London NW10 (the premises), to the respondent (AFL) under a tenancy agreement dated 7 July 1997, for a term certain of 4 years from that date, at a monthly rental of £1,200 per month. In November 1998 the appellants issued proceedings for possession of the premises claiming that AFL had fallen into arrears of rent in the sum of £4,800. In January 1999 AFL filed a defence and counterclaim alleging, inter alia, that the appellants had been in breach of the tenancy agreement by failing to keep the premises insured and in structural repair. AFL sought to set off any rent due against sums it had paid for necessary works and insurance. On 14 March 2000 the county court judge made an order for possession against AFL but made no order for costs.
The appellants submitted an application for the matter to be relisted on the basis that the judge had made no order as to costs without full submissions being made and without taking into account the complex background of the action, and that he should have made a monetary order for the arrears of rent. On 30 March 2000, in response to that application and without the matter being relisted for a hearing or attendance on either side, the judge ordered that the appellants’ application for leave to appeal be refused. The appellants appealed.
Held: The appeal was dismissed.
Apart from the standard rubric in the order of 14 March, neither that order or the order of 30 March made any reference to the appellants’ money claim. Furthermore, the judge did not appear to have given a judgment or reasons for making either order and there was no transcript of the hearing on 14 March. However, on the material available, it was impossible to draw an inference that by making an order for possession the judge was also deciding that the claimants were inevitably entitled to judgment on their money claim. The judge’s failure to give judgment on 14 March was explained by the fact that he was in effect making an uncontested order for possession without hearing evidence and leaving the remaining issues to be resolved on another occasion. The claimants had failed to show that the judge had been plainly wrong in refusing to make an order for costs. The matter was to be restored to the judge’s list so that the remaining outstanding issues between the parties could be resolved.
Karl King (instructed by Arbeid Golstein & Oshry) appeared for the appellants; Ivan Krolick (instructed by Cawdery Kaye Fireman & Taylor) appeared for the respondent.
Thomas Elliott, barrister
