Coram: Sir Alan Huggins, V.-P., Silke & Barker, JJ.A.
Date: 28 September 1982
Sir Alan Huggins, V.-P. :
1. This is an appeal against the judgment of a District Judge refusing an order for possession upon an application by the Landlord forpossession for occupation by himself.
2. The first two grounds of appeal relate to questions put by the learned judge herself in the course of the proceedings. The originalclaim by the Landlord was in respect of occupation by himself and his wife and children. Subsequently he separated from his wife,and his wife obtained custody of the children, and therefore he was from then on going to require occupation only for himself andpossibly for another wife, but the questions which were put by the judge related to the circumstances of the separation of the Landlordfrom his wife and it appears to have been suggested in a question that the wife was left “in a pathetic state”. This phrase doesnot appear in the judgment but, speaking for myself, I find it difficult to understand why the judge asked these questions and difficultto believe that her approach to the case was not to some extent at least coloured by the view which she had apparently formed andwhich led her to put the questions in the form in which they must have been put to the Appellant.
3. That might not of itself have been enough to allow this appeal, but there are other grounds which in my view make it imperative thatwe allow the appeal. I refer in particular to grounds 10 to 13. The tenth ground was that “the learned judged erred in law in attachingno or no sufficient weight to the fact that the Appellant’s present accommodation was unsatisfactory due to the fact that the pipeshad burst on four occasions during his occupancy since September 1980 causing flooding of the premises”. Now the reference to “thefact”, of course, is begging the question. Also it seems to me that the words “or no sufficient” were wrongly inserted because theyraise a question of fact and not a question of law, but I conclude that the learned judge did take the view that no weight was tobe attached to the fact that the pipes had burst on several occasions. I say the pipes had “burst”, but in fact what had happenedwas that there were two types of defect: on two occasions pipes situated in the walls of the premises burst: on two other occasionsthe sewage system in the building became blocked and sewage from the upper floors backed up and flooded into the lower floor occupiedby the Tenant. The learned judge in her judgment said that the incidents of burst pipes could happen to any premises and that thepipes have since been repaired. Ground 11 suggests that there was no evidence upon which the judge could find that they had beenrepaired. That I do not accept. I think there was evidence of that, but the implication of the passage relied upon is that no weightshould he attached to the past events. In my view this was a most material circumstance. No one wishes to live in premises wherethere have been four incidents of this kind over a short period if he has a choice. If two pipes burst there is always a risk thatthere will be further pipes bursting – remembering, of course, that this is in a climate which is not subjected to severe frost.The implication is that the plumbing installed in the premises was inferior in quality and there was a real danger that there mightbe a repetition. Equally there was always a danger, if there had been two blockages of the sewage system, that there might be furtherblockages, and that to my mind is a matter of very considerable importance: no one wishes to have his living accommodation saturatedwith sewage.
4. The 12th ground was that “the learned judge erred in law in finding that the Appellant did not employ a servant for reasons otherthan lack of servant’s quarters at his present residence in the absence of evidence thereof”. In other words it is alleged that theonly proper finding was that the absence of quarters was the sole reason for not employing a servant. With respect I do not agreewith that. The evidence was that the absence of servants’ quarters was “one of the major reasons”, not even “the major reason”. Thereforethere must have been other reasons, but the learned judge appears to have dismissed this reason as of no consequence and that givesrise to ground 13. She went on: “Even if he should decide to employ a servant, he has not said why the spare room could not be utilisedfor converting into such”. It may be that the Landlord’s attention in examination was not drawn to this particular question but hedid indicate that the third room, which was called “the spare room”, was likely to be wanted by visitors including his own children.The suggestion has been that in some way, if that room were made into an amah’s room, it could be occupied by the children on theoccasions of their visits at weekends. That seems to me to be unrealistic. If a room is given to a full time resident amah, the amahwould inevitably expect to be given full control and, even if she were not present on any particular night, she would expect to beable to lock the premises. Therefore I think that the learned judge was in error on ground 13.
5. Grounds 7, 8 and 9 relate to the suggestion that the premises occupied by the Landlord were not suitable for his entertaining hisfriends and clients. He is a man of very considerable substance, earning in the region of $1 million a year net. He is in the propertybusiness, and if he were wishing to entertain clients one can readily see that he would wish his own premises to reflect his goodtaste. The evidence was not as full as it might have been, but the Landlord did say that he would like something larger. The sizeof the premises he at present occupies is certainly small. It has, as we have seen, very limited accommodation and I think it wouldbe very difficult to uphold the view of the judge that the requirement for entertainment purposes was not reasonable. However, Ido not need to come to any concluded view on this aspect, because in my view the other points are beyond question and the appealought to be allowed.
6. None of us thought there was any substance in the grounds 3 to 6, which related to the rent which was being paid by the Landlordin his present flat and the small rent which he was receiving for the suit premises. It was agreed that the rent was going to bemade up if the application were unsuccessful and in our view that disposed of the point. Equally I see nothing wrong in the learnedjudge’s approach to the finding that the Appellant’s intention to marry the lady with whom he is at present living was not sufficientlyproved to justify attaching any weight to it. The judge said that the marriage had not lasted very long. The Landlord had then goneto live with somebody else for nine months, and the present lady he had been living with for only six months, and though the judgethought may be there would be a marriage it was not proved that it was sufficiently imminent to justify attaching any weight to that.
7. There then comes the question whether or not there ought to be a new trial. I think that in all the circumstances it is right thatthere should be a new trial – and a trial, of course, before another judge, having regard to what I said in relation to ground 1.
Silke, J.A. :
8. I agree with the conclusion reached by my lord the Vice-President and in the order he proposes.
Barker, J.A. :
9. I also agree.
28th September 1982