The Gazette 1979

JULY-AUGUST 1979

GAZETTE

Motor (a company formed by the tenant). The terms of the new lease were substan- tially similar to those of the lease of the 15 October 1970. On the 10 July 1975 the Applicants served a notice of their intention to claim relief under the 1931 Act and on the 29 March 1976 they served notice of their intention to apply to the Circuit Court for a new tenancy. In their notice they stated that their lease "terminated" (within the meaning of Section 19 of the 1931 Act) on the 12 November 1975. The Applicants succeeded in the Circuit Court and the Respondents appealed to the High Court. The Applicants argued that the tenant had exclusive possession of the premises from the 6 February to the 12 February 1973 and that he was a tenant during that week and so had been using the premises for more than three years before the 12 November 1975 next. If that first proposition was wrong the Applicants submitted that the Caretaker's Agreement i.e. the written acknowledgement dated the 6 February 1973 was made void by Section 42 of the 1931 Act. The High Court stated a case for the decision of the Supreme Court on the following questions: "(l)Did the said Caretaker's Agreement create a tenancy? (2) If the said Caretaker's Agreement did not create a tenancy, is the same null and void under the provisions of S.42 of the Landlord and Tenant Act 1931 upon the ground that it indirectly deprives the applicant of its right to relief sought in these Proceedings?" The Applicants argued that a person in exclusive possession of land must be regarded as holding it as a tenant and that the reality of the arrangement was the creation of a tenancy from the 6 February to the 12 February 1973. The Court found that a person may be in exclusive possession of land but not be a tenant and referred to the cases of Addiscombe Garden Estates Ltd. v. Crabbe [1952] I K.B. 902 and Shell Mex & BE. Limited v. Manchester Garages Ltd. [1971] 1 All E.R. 841. The Court did not agree that the law in the Republic of Ireland in this respect was different from that in England and referred to Davies v. Hilliard (1967) 101 I.L.T.R. 50, where the Supreme Company Limited)

Court held that a person who went into occupation under a Caretaker's Agreement when terms for a proposed tenancy were being negotiated and who had paid rent and was in exclusive possession did not hold the property as a tenant but as a caretaker. Held (per Kenny J.) on the two questions as follows: (1) No. That the tenant was not a tenant from the 6 February to the 12 February 1973 and that the Caretaker's Agreement did not create a tenancy. (2) No. That a tenant must have an existing right before a tenant can rely on Section 42 of the 1931 Act. The said Section 42 provides that: "A contract, whether made before or after the passing of this Act, by virtue of which a tenant would be directly or indirectly deprived of his right to obtain relief under this Act or any particular such relief shall be void." The foundation of the Section is that there is an existing right to relief under the 1931 Act which the tenant has. The Applicants did not use the premises for the whole of the three years next before the 12 November 1975 and could not invoke the three years for which the tenant was in occupation because neither the Applicants nor the tenant were in occupation as tenant between the 6 February and the 12 February 1973. Even if the Caretaker's Agreement was made void by Section 42 (which the Court did not accept) the Applicants were not entitled because they had not been in possession for the necessary three year period within the meaning of Section 19 of the 1931 Act as at the 6 February 1973. Gatlen Motor Company Limited v. Continental Oil Company of Ireland Limited — Supreme Court (per Kenny J. with Griffin» and Parke JJ.) - 6 April, 1979 - unreported. MALICIOUS INJURY Jurisdiction of Circuit Court to Award Compensation for Malicious Damage to Property where it occurs outside a "County". The Applicant was the owner of two boats which were anchored to permanent moorings in the sea, when, as was found by the Circuit Judge, on the night of the 23 October

1972 they were maliciously set fire to and destroyed, the Applicant thereby suffering £10,000 damages. The moorings were in an inlet of the sea known as Inch Channel, which is part of the bay known as Lough Swilly, on the coast of County Donegal. The boats were floating over their moorings and the moor- ings were located in tidal waters below the low-tide water mark. The channel at the point in question is about one thousand feet wide, between Fahan Pier on one side and the low-water mark on the other, and the boa ts were moored approximately half-way i.e. about five hundred feet out from the nearest low-water mark. The land on both sides of the channel forms part of County Donegal and the nearest point on the boundary between the Counties of Donegal and Derry is over one mile distant. It was common case at the start of the legal argument that the Applicant would have to show that the damage took place within the County of Donegal in order to succeed. This was an incor- rect premise on which to proceed for the reasons that appear later. The Circuit Court stated a case for the decision of the Supreme Court on the following questions: (1) Was the malicious act committed within the County of Donegal? (2) Is the Applicant entitled to compensation? In the course of his judgment Henchy J. stated that the boun- daries of a County derived from and were given validity by the ordnance maps prepared pursuant to the powers conferred by the Survey (Ireland) Acts 1825 to 1870, and having examined the various statutes and having considered the provisions of the Survey (Ireland) Acts 1854 and 1857, he formed the view that land which was washed over by the tides and not reclaimed from the sea was not eligible for inclusion within the boundary of a County. The line of high tide would therefore be the County boundary on the sea coast. This was the difficulty that arose in the case of Smyth and Fordham v. Dun Laoghaire Corporation and Dublin County Council [1960] Ir. Jur. Rep 45 but in that case the provisions of Section 685 of the Merchant Shipping Act 1894 were not relied on but were relied on in this case. In the course of his judgment,