The Gazette 1984

OCTOBER 1984

GAZ E T TE

making Committee to make a rule under which the time fixed by Statute could be extended by the Court. In view of the foregoing the Appli- cants' right to the claim for compensation for criminal injury became statute barred by theStatuteof Limitationsof 1957after the expiration of six years from the date of the criminal injury and the application to the Circuit Court to extend the time was made outside that time limit and it was not within the powers of Court to extend the time for bringing an applica- tion for compensation so as to defeat the bar under the Statute of Limitations Act, 1957. In The Matter of The Local Government (Ireland) Act, 1898 and In The Matter of the Damage to Property (Compensation) Act. 1923. Woodrow Packaging Limited -v- Dublin Corporation - High Court (per McMahon J.). 26 July. 1983 - unreported. Peter M. Lennon LANDLORD AND TENANT Section 35 Arbitration Act, 1954 — Special Case — 15 year rent reviews — "Loading" determined. In 1967, the Claimants leased the office block 72-76 St. Stephen's Green, Dublin, to the Respondents for a term of 75 years with an annual rent of £70,000.00 for the first 15 years. The Rent Review Clause in the Lease commenced:— ". . . And it is hereby agreed and declared that on each fifteenth anniversary at the commencement of the term hereby granted the yearly rent hereby reserved shall be reviewed and that as and from the expiration of each such fifteen years the said yearly rent shall be the greater of the following, i.e. (1) the said sum of seventy thousand pounds or (II) the market rent having regard to the rental values then current for similar property let with vacant possession without a premium by a willing lessor to a willing lessee and subject to the provisions of this Lease". The Clause continued with the usual provision for the * appointment of an Arbitrator if agreement could not be reached between the parties. An Arbitrator was appointed when the first Rent Review fell to be made in January 1982. At the request of the parties the Arbitrator stated a Special Case for the determination of the High Court pursuant to Section 35 of the 1954 Arbitration Act. Prior to the Arbitration the Valuers on each side had agreed that the sum of £570,187.00 represented the market rent which would be fixed for a letting of this office block as ol January 1982. However, the Claimants contended:

It was clear therefore that Section 11 of the Statute of Limitations required an application for compensation for criminal injury within six years unless that time could be extended by the Circuit Court. The Applicants relied upon Section 21 of the Damage to Property (Compensa- tion) Act, 1923 in support of their argument for an extension of time. That section repealed Section 137 of The Grand Jury (Ireland) Act, 1836 as and from 23 December, 1920. Sub section 2 of section 21 provided "The powers of the Court or Judge under any rules of Court made whether before or after the passing of the Act in pursuance of Sub section (7) of the Section 5 of the Local Government (Ireland) Act, 1898 shall include and be deemed to have included as and from the 23rd December, 1920 power to extend or vary the time prescribed by any Statute or Statutory Rules for ma k i ng an a p p l i c a t i on f or compensation for criminal injuries or for serving any Notice or for doing any other act or taking any proceedings in relation to the appli- cation in any cse where it appears to the Court or Judge that such extension or variation is just and reasonable for any cause what- soever." The power conferred by that Sub section is imported into the Circuit Court Rules by Order 52 Rule 10. The Applicants in their arguments contended that under Section 21(2) of the Act of 1923 and Order 52 Rule 10 of the Rules of the Circuit Court the time limit of six years under Section 11 of Statute of Limitaitons 1957 could be extended by the Circuit Court Judge if he considered it just and reasonable for any cause what- soever to do so. In arriving at its decision the Court HELD: A. The Applicants' contentions could only succeed if Section 21(2) of the Act of 1923 and Order 52 Rule 10 of the Circuit Court Rules were construed as giving power to extend the time prescribed by Statute subsequent in date to that Act or those Rules. B. The Act of 1923 cannot be read as extending to Statutes which might be enacted in the future. The Court is satisfied that there was no reason why the legislature in 1923 would have concerned itself with powers to extend time limits which might be contained in future Statutes. The Court therefore is satisfied that the power in the Act of 1923 applied only to extend the time prescribed in Statutes existing at the date of that Act. Similarly the power in Order 52 Rule 10 to extend the time limited by Statute is confined to Statutes pre-dating the Act of 1923 since that is the only Act enabling the Rule

(a) That the Rent Review Clause required that the rent to be fixed as of January 1982 be fixed by reference to the market rent which would be payable as between a willing Lessor and a willing Lessee of similar properties let with vacant possession without a premium subject to the provisions of the said Lease and that, for a period in excess of five years between Rent Review Dates a willing Landlord would demand and a willing Lessee would be willing to pay a rent greater than that which would be fixed for a five year period. (b) That the Clause both required and permitted the fixing of a rent in excess of this sum so as to reflect the willingness of a Lessor and Lessee to postpone a Rent Review from 5 to 15 years. The Respondents contended that: (a) Upon a correct interpretation of the Clause the only rent which could be fixed was such sum as represented the market rent for the said office block in January 1982, namely, £570,187.00, and (b) That the Clause did not permit the incorporation of any device or mechanism which would bring about indirectly a review of the rent more frequently than 15 years or otherwise increase the sum to be fixed for the yearly rent beyond that which would otherwise be the market rent for the property. The Arbitrator's question of law for the opinion of the Court was worded: ". . . am I legally entitled upon a correct construction of the Rent Review Clause contained in the said Lease, to increase the said sum of £570,187.00 so as to endeavour insofar as may be possible upon any evidence which may be adduced to me, to take into account and reflect the fact that the Lease provides for ^ Rent Reviews every 15 years as opposed to every 5 years?" The Court answered as follows:— "Yes, but on the assumption that the said sum would be increased by the presence of a Clause providing for Rent Reviews every 15 years as opposed to a Clause providing for such Reviews at some lesser interval than 15 years". Colmstock Properties Limited -v- The Commissioners of Public Works in Ireland - High Court (per Keane J.). 18 November. 1983 - unreported. Leo McCarthy Copies of judgments in the above cases are available on request from the S o c i e t y 's L i b r a r y. T he photocopying rate is lOp per page.

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