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Windsor Life Assurance Co Ltd v Lloyds TSB Bank plc [2009] 47 EG 134

DATE: 15 Oct 2009

In circumstances where the landlord had commenced proceedings for a the grant of a new business tenancy to a tenant, it was entirely a matter for the tenant, under section 29(5) of the 1954 Act, to inform the court that it did not want a new tenancy. If it did so, the landlord's application for a new tenancy was automatically dismissed; the court had no discretion to refuse to dismiss the application. The court was under a positive statutory obligation to dismiss the application for a new tenancy forthwith on receipt of the notification and neither party had to make any further application to obtain such an order. The statute presupposed that the court should dismiss the application for a new tenancy immediately on receipt of the tenant's notice. The relevant date for that purpose was the date on which the tenant's letter was received at court. However, there would usually be a delay between the receipt of the tenant's letter by court staff and the matter coming before a judge for dismissal. It would be unjust if the tenant's liability for rent continued during that period of delay. Accordingly, when considering the matter, the judge should declare that the application was dismissed as of the date of receipt of the letter, so far as it sought the grant of a new tenancy. He should proceed to make the necessary orders or directions concerning costs and interim rent. The automatic dismissal would be confined to the application for the new tenancy and any question of costs or interim rent would remain to be decided by the judge: Lay v Drexler [2007] EWCA Civ 464; [2007] 2 EGLR 46; [2007] 31 EG 82 distinguished. However, it was likely that the tenant would be ordered to pay the landlord's costs since the proceedings, although commenced by the landlord, were those in which the tenant sought a new tenancy; if it did not want require a new tenancy, it could have said so earlier.