Fox v Simmons

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 03 March 2014
• Court: Supreme Court (Bermuda)
• Docket Number: 335 of 2013
• Date: 03 March 2014

Supreme Court

Kawaley I.R.C.

335 of 2013

Fox

and

Simmons

Appearances:

Mr. Jaymo Durham, Amicus Law Chambers Ltd., for the plaintiff.

Mrs. Lauren Sadler-Best, Trott & Duncan Limited, for the defendant.

Contract Law - Tenancy Agreement — Whether the second contract was void — Whether the initial contract was in effect.

Civil Practice and Procedure - Whether the interim order permitting the plaintiff to remain in occupation of the premises pending the determination of the terms of the tenancy agreement should be continued — Whether the Plaintiff has a seriously arguable case.

Kawaley, C.J.

Background

1 The plaintiff issued a Specially Endorsed Writ on September 25, 2013 against the defendant as Administrator of the Estate of Karen (Hudson) Lewis. The deceased was the legal owner of a property which the plaintiff rented from her, through an agreement that was actually signed by the deceased's mother, Janet Simmons dated April 30, 2012. There was a subsequent agreement dated May 31, 2012 which sought to replace the earlier agreement. The principal difference of relevance to the present application is that the duration of the lease was not for three years, as in the first agreement, but was until the estate or probate “has been settled”.

2 The relief which the plaintiff sought substantively was:

• (a) a declaration that the contract dated 31st May, 2012 was void;

• (b) a declaration that the initial contract was in effect; and also

• (c) “A declaration that the defendant is estopped from terminating the tenancy” before the expiry of the three year term of the original tenancy agreement, “otherwise than by breach of the tenant's obligation”.

3 The matter came before Hellman J on September 25, 2013, in Chambers, and he granted an interim order permitting the plaintiff to remain in occupation of the premises pending the determination of the terms of the tenancy agreement. Clearly, it was anticipated that this Court would at today's hearing, in effect, decide, whether or not the plaintiff should be allowed to remain in possession any longer based on an adjudication of the merits of the claim. Clearly, Hellman J cannot have contemplated that the Court would determine any controversial issues of fact. He merely envisaged that the Court would construe the agreement and decide whether or not the Second Lease was in fact invalid, according to its terms.

FINDINGS

4 Having reviewed the authorities relied upon by Mr. Durham, for the plaintiff, I do find that the second agreement was invalid, because the term of the lease was indefinite. The authorities which he referred to, included the following: Prudential Assurance Co. Ltd. v. London Residuary Body [1992] 2 A.C. 386 at pages 391 and 394 (per Lord Templeman). He also referred to Mexfield Housing Co-operative Ltd v. Berrisford [2011] Ch. 244, which provided a further illustration of this principle. Reference was also made to the case of Siew Soon Wah v. Yong Tong Hong [1973] A.C. 836.

5 The crucial question is whether, as a result of the...