POSSESSION OF SHOP

Press, Volume LXXXVIII, Issue 26887, 13 November 1952, Page 6

POSSESSION OF SHOP

MAGISTRATE’S DECISION UPHELD REHEARING IN SUPREME COURT An appeal by Leon Arundel Goldsmith, a fruit and produce merchant, against a decision given in the Magistrate’s Court on March 14, by Mr Rex C. Abernethy, 5.M.,-that he give Radley Bros., Ltd., possession of premises at 158 Lichfield street, was rejected b v Mr Justice Northcroft in the Supreme Court yesterday. His Honour extended the time for the premises to be vacated to March 31, 1953. Mr T. A. Gresson appeared for Goldsmith, and Mr G. G. Lockwood for Radley Bros., Ltd. The appeal was by way of a rehearing. Mr Gresson said that, by the Magistrate’s order. Goldsmith was directed to vacate the premises he had occupied for 16 years. It would have taken effect on October 10 but for this appeal. The landlord sought possession on the ground that it required the premises for its own use. Goldsmith was given 12 months’ notice of the landlord’s intention to sue for possession. It was agreed that the only question for the Court to decide was that of relative hardship. The premises comprised a small shop fronting Lichfield street, with a cellar and an office and storeroom immediately above the shop. The nature of Goldsmith’s business was probably unique. He was described as a whole-saler-retailer. He had a few growers for whom he sold on commission, and he also bought on all markets and sold in case and bag lots to retail fruiterers and to the public, as well as selling in small lots to the public. The appellant contended that by the special nature of his business and the locality goodwill it was essential for him to have premises hard by the fruit markets. If an order for possession was made it would effectively wreck his business. Radley Bros., Ltd., bought and rebuilt the premises in 1T35, and in 1936 gave Goldsmith a lease for six years. For the first three years the rent was £3 a week, and for the next three years it was £3 10s. It was now £6 a week. The. evidence would show that Radley Bros., Ltd., had greatly expanded its business and. would appreciate more floor space, but the appellant submitted that the company was carrying on very successfully without any hardyship, though it might be inconvenienced. If an order was made the hardship on Goldsmith would exceed that of the landlord if no order was made.

Evidence was given for the appellant on those lines. Case for Respondent Mr Lockwood said that as early as 1946 the respondent company had exhausted all means of adding to its accommodation. Since 1936 the company’s turnover had almost ttebled and the staff had increased from 26 to 43. The accommodation was overcrowded on all sides. The Labour Department had sent the company a letter pointing out that the lavatory and washing facilities for the storemen were inadequate. The appellant had had six years to make other arrangements. Counsel submitted that the appellant could have done much more than he had done to meet the problem. • Evidence was given by Herbert Edward Radley, managing director of the company, and other witnesses in support of the respondent’s case. His Honour said he was persuaded on the evidence that the premises were urgently required by the company for its own use. On balance, he thought the view he should take was that the hardship to the company if no order was made would be greater than that of Goldsmith if an order was made. Goldsmith would not be put out of business if an order was made but could carry on a restricted business or develop a similar type of business provided he did not go too far from his present premises. Goldsmith could not fasten himself, without property rights, upon the landlord by claiming he had a peculiar type of business which would not survive a move. His Honour said that, in all the circumstances, it was his duty to uphold the decision of the lower Court and reject the appeal, but he would extend the period requiring the tenant to vacate the premises to March 31, 1953.

The respondent company was allowed £lO 10s costs with witnesses’ expenses and disbursements to be fixed by the Registrar.