Besan Ltd v. Everlight Commodities Ltd

CACV000097A/1982

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Leonard, V. P., Cons, J. A. & Power, J.

Date of Hearing: 15th April, 1983.

Date of Judgment: 26th April, 1983

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JUDGMENT

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Cons, J. A. :

1. The facts appropriate to this application appear sufficiently from the earlier judgment of my Lord the Vice-President, in particular the passage commencing from near the foot of page 2 where he deals with such evidence as there was with regard to the lack of written consent and concludes with these words :-

"Therefore I should have found that the inference that the respondent had not consented to the sub-letting either in writing or at all was irresistible. Had I been sitting at first instance therefore I would have found on the evidence of Mr. Anderson, which was the only evidence called, and on the documents he produced that the onus on the respondent of showing the lack of consent had been discharged."

2. The learned judge below had not been satisfied on that evidence alone, although he had come to the same conclusion by taking into additional account inferences he had drawn from the pleadings.

3. Later on my Lord, still dealing with the same point, had this to say :-

"No cross-notice of appeal or counter-notice was filed and hence it was not open to the respondent to argue that the necessary inference from the evidence as distinct from the pleadings was as I have suggested earlier."

4. That judgment was handed down on the 8th of February.  The comments that we have just referred to took counsel for the landlord completely by surprise.  He was in his own words "utterly flabbergasted". In his view the question had been fully ventilated in the argument on the appeal.

5. With every respect to him we are unanimous in our view, with which counsel for the tenant agrees that that was not so.  The argument that the judge's finding was supportable "on the totality of the evidence", was as we understood it, directed solely to the question raised by the notice of appeal as to whether he was entitled to draw inferences from the pleadings.

6. We are now asked to re-open the appeal on this point and at the same time to give leave for the late filing of a respondent's notice.  The application was initially made on the very day that the judgment was handed down, i.e. well before our order had been passed and entered, if indeed it ever has.  There can therefore be no doubt that we have jurisdiction; in re. Barrell Enterprises⁽¹⁾. At the same time it is a jurisdiction that should not be lightly exercised but only, as that case emphasizes, in most exceptional circumstances or where some most unusual element is present.

7. The litigation between the parties to this tenancy does not have a happy history.  We are told that there were eight hearings in the court below before the landlord finally obtained his order for possession.  Today will be also the eighth separate day on which counsel have appeared before us in connection with the appeal since the hearing began in September last year (although it was strictly not necessary for any counsel to be present when our judgment was handed down under the provision of Order 42 rule 5A). Most, if not all, of the delay has resulted from the tenant's side.  Furthermore, his initial conduct in relation to the tenancy itself can hardly commend itself to any person.   Yet as matters now stand he is entitled to reap the advantage of that conduct and in addition the landlord is obliged to shoulder a very heavy burden by way of costs.

8. The cause of this situation is, as my Lord indicates in the passage to which we have referred, the fact that the question was not raised before us in the appeal proceedings.   Counsel for the tenant draws our particular attention to the following sentence in Barrell : -

"It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked."

9. However we do not think that to be the situation here.  The point was clearly made in argument to the judge below (page 41 Appeal Bundle). It was not made again in this court only because of the misunderstanding of counsel.  It was not "overlooked" in the sense in which that word is used in the passage quoted. In all the particular circumstances it would not be right to visit that misunderstanding upon the landlord himself and thereby subject him to the double penalties we have just indicated. It would indeed be most exceptionally wrong and in our view justifies our taking, as we do, the most unusual course of withdrawing our previous order, re-opening the appeal and giving leave to file the respondent's notice at this stage.

10. At the last hearing, when we decided to reserve our judgment on the matter we have just dealt with, we heard both counsel, as it were de bene esse, on the substantive point raised by that notice.  Our decision thereon accords with the view provisionally taken by my Lord the Vice-President earlier. Nothing that counsel for the tenant was able to put forward appears to us to offer any other acceptable explanation. And it is pertinent to note that before the judge below the tenant himself put forward no explanation at all. We are satisfied that the only reasonable inference from his conduct, and from his conduct alone, is that the landlord had not in fact given a written consent to the sub-letting. All other arguments for the tenant having failed for the reasons which we gave previously, we must dismiss the Appeal.  We would be pleased to hear counsel as to costs.

(1) (1973) 1 W. L. R. 19

Representation:

Mr. Y. C. Mok (M/S Wong, Hui & Souza) for Appellant.

Mills-Owens, Q. C. & Mrs. Kaplan (M/S Denton, Hall & Burgin) for Respondent.