Previous Page  657 / 822 Next Page
Information
Show Menu
Previous Page 657 / 822 Next Page
Page Background

in Queen's Club Garden Estates Ltd.

v.

Bignell

in which it was held by the High Court in England

that in order that a weekly tenancy may be deter–

mined by a notice to quit, the notice must be one

which expires at the end of a periodic week from

the commencement of the

tenancy. The latest

decision in this conflict of judicial opinion was

recently given by the English Court of Appeal in

Lemon

v.

Lardeur in which Queen's Club Gardens

Estates Ltd.

v.

Bignell was

approved

and

Simmons

v.

Crossley overruled. It is now the law

in England that in any periodic tenancy whether

yearly, quarterly, monthly or weekly the notice to

quit to be valid must be given so as to expire at

the end of the current period of the tenancy. This

proposition was always accepted

in

regard

to

yearly tenancies but the decision if followed by

Irish Courts will alter the law as it now stands with

regard to monthly and weekly tenancies.

Requisition for Taxation of Costs

Estoppel

THE reserved judgment of the Supreme Court in

the case of James O'Brien, rate collector, to David

Fleming,

solicitor, was

delivered

recently by

O'Byrne, J. This was an appeal from the decision

of Overend, J., on an application to review the

taxation of a bill of solicitor and client costs. On

the taxation, the client, a rate collector, alleged

that there had been an agreement by his solicitor

not to charge any solicitor and client costs, but that

the solicitor should be remunerated for all work

incidental to the collection of rates by receiving

the party and party costs allowed against defaulting

ratepayers. The Taxing Master held that such an

agreement existed and disallowed the entire bill.

On the application to review, Overend, J., held

that normally a client would be estopped from

raising such a point after signing a requisition to

tax in the common form without reservation, but

that the solicitor, by agreeing to go into evidence

as to the existence of the agreement and not relying

on such estoppel, was in his turn estopped from

now raising that point. He held that the hearing

before the Taxing Master had been unsatisfactory,

inasmuch as the parties had not had an opportunity

of going fully into evidence on the matter in

dispute and remitted the case to the Taxing Master

for further hearing.

The client appealed to the

Supreme Court, where, after several days' argument,

judgment was reserved.

The reserved judgment

was in favour of the solicitor, dismissing the appeal.

In the course of his judgment O'Byrne, J., pointed

out that the application to review had not been quite

regular, inasmuch as no formal certificate of taxation

had been made, the Taxing Master having only

made a report on his findings. Or. 65, rule 66 (3),

of the Rules of 1905, contemplates that-an applica–

tion to review taxation shall only be made after the

certificate of taxation has been issued. As, how–

ever, it appeared that the present case was in accor–

dance with the usual procedure in the Taxing

Office, the Court considered that the irregularity

should not be treated as fatal to the application.

The Taxing Master, he said, had acted on a wrong

principle in deciding a material issue of fact on

insufficient evidence and the case must go back to

him for further hearing.

(I.L.T. & S.J.)

Landlord and Tenant Act, 1931 Application

for Extension of Time for Claiming Relief

BY section 19 (2)

(a)

of the Landlord and Tenant

Act, 1931, references in the section to the termina–

tion of a tenancy terminated by notice to quit, as a

point of time, are to be construed as the date of

service of the notice to quit.

In a recent appeal

heard by Davitt, J., against an order of the Circuit

Judge refusing an application by the appellant for

an extension of the time for serving notice of

intention to claim relief under the Act the facts

were as follows. The appellant had held certain

business premises as tenant to the respondent under

a lease for one year certain from ist October, 1942,

and thereafter from year to year, determinable at

the end of the first or any subsequent year of the

tenancy by three months' notice in writing. On

15th March, 1945, while the term had still some six

months to run to bring the tenant within the pro–

visions of Section 19 (i)

(a)

entitling him to a new

tenancy, the landlord served notice to quit to expire

on ist October following. The tenant did not

serve notice of intention to claim relief within one

month from service of the notice to quit as required

by Section 24 (2)

(a)

but subsequently applied under

Section 45 for an extension of the time for so doing.

It was held by the Circuit Judge that the tenant was

not entitled to the benefit of the Act, as the tenancy

having been determined for the purpose of Section 19

at the actual date of service of the notice to quit,

before the tenant had been in occupation for three

years, he never came within the provisions of

Section 19 (i)

(a)

although the expiration of the

notice

to quit was contemporaneous with the

expiration of three years from the commencement

of the tenancy. He further held that on the facts

of the case no justifiable cause had been shown

for the tenant's failure to serve the notice of intention

to claim relief in time. Davitt, J., affirmed the

order of the Circuit Judge. As pointed out by

counsel for the appellant in argument one result of

the definition in Section 19 (2)

(a)

of the termination

of the tenancy as meaning the date of service of the

48