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Somerfield Stores Ltd v Spring (Sutton Coldfield) Ltd (In Administration) (2010)

Summary

The date of the hearing at which the necessary intention under the Landlord and Tenant Act 1954 s.30(1)(f) to redevelop the relevant property in order to oppose the renewal of a business tenancy had to be shown to exist was always the date of the substantive trial of the landlord's ground of opposition, and not at a summary judgment hearing for dismissal of the opposition.

Facts

The appellant business tenant (T) appealed against the dismissal of its application for summary judgment to dismiss the opposition by the respondent landlord (L) of its application for new tenancies. T was the tenant under three leases of a supermarket and adjoining land that were due to expire. T served on L notices under the Landlord and Tenant Act 1954 s.26 requesting new tenancies, which were met by counter notices that L would oppose the grant of the new tenancies on the ground that pursuant to s.30(1)(f) it intended to redevelop the property at the termination of the leases. T applied to the court for the grant of the new tenancies, and a trial was set to hear the ground of opposition as a preliminary issue. It was common knowledge that where a landlord opposed the renewal of a tenancy on the ground that it was his intention to redevelop the property he had to show that the requisite intention existed at a time that was determined by reference to the date of the trial of that ground of opposition. T's application for summary judgment to dismiss the ground of opposition was dismissed. The issue in the case was whether a tenant who had applied for summary judgment of the ground of opposition was entitled to that judgment if he could show that the landlord had no real prospect of establishing the requisite intention at a date determined by reference to the date of the summary judgement hearing rather than the date of a prospective trial.

Held

The date of the hearing at which the necessary intention had to be shown to exist was always the date of the substantive trial of the landlord's ground of objection, Betty's Cafes Ltd v Phillips Furnishing Stores Ltd (No1) (1959) AC 20 HL and Dutch Oven, Ltd v Egham Estate & Investment Co (1968) 1 WLR 1483 Ch D applied. Such a trial amounted to a hearing at which evidence was tested and facts found for the purpose of a final determination one way or the other. On the other hand, the essential nature of the summary judgment jurisdiction was to determine whether a party had a real prospect of establishing their cause of action or defence in the future, and a summary judgment hearing made no determination of any facts in dispute and it could only result in the substantive issue coming to an end if the decision went one way. It followed that at any summary judgment application the question to be considered was whether, looking forward to the anticipated date of trial, the landlord could show a real prospect of being able to establish the necessary intention at that future date. Insofar as it was necessary to show a reasonable prospect of being able to commence work by reference to a particular date, that date would also have to be determined by reference to the anticipated date of trial.

Appeal dismissed

District Registry (Birmingham)
David Cooke HHJ
Judgment date
4 August 2010
References

​LTL 6/8/2010 : [2010] EWHC 2084 (Ch)

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