Turner and ANOR v Kostoglou and ANOR (No 4) No. Scciv-02-1891

[2003] SASC 246

TURNER and ANOR v KOSTOGLOU and ANOR (No 4)
[2003] SASC 246

Civil

1. PERRY J.  (ex tempore)     In this matter I have given three previous judgments or rulings. The first on 1 May 2003, then on 10 June and 9 July 2003.

2. The intervention of this Court was sought by notice of appeal from a decision of the Magistrates Court and was given in the context of an application by the appellants under the Landlord and Tenant Act 1936. They asserted that goods which they had owned had wrongfully been taken by the respondents in the course of a distraint carried out by the respondents in their capacity as landlords of shop premises at Enfield.

3. I held initially that at common law the right to distrain was lost upon the termination of the tenancy, that in this case that occurred before the distraint was commenced or at least completed, and that in those circumstances the distraint was unlawful.

4. That was a point which the appellants had sought to argue in the court below but the magistrate consistently ruled against addressing the question.

5. At first I had thought that the magistrate was correct in doing so, given the limited nature of the jurisdiction which the magistrate was exercising, being the jurisdiction conferred by Part 2 of the Landlord and Tenant Act 1936.

6. But on reconsideration I held that the magistrate should have allowed the question to be agitated, and should have addressed it. If the distraint was unlawful, this went to the jurisdiction of the Magistrates Court to entertain the proceedings in the first place. I held that a jurisdictional issue could always be raised.

7. In the result, I upheld the argument that the distraint was unlawful, and held that the Magistrates Court in consequence had no jurisdiction to entertain the claim brought by the appellants under Part 2 of the Landlord and Tenant Act 1936. I allowed the appeal to this Court simply for the purpose of quashing the findings which were appealed from, but otherwise upholding the dismissal of the proceedings.

8. This case is unusual in that ultimately the appellants succeeded in persuading this Court that the court below did not have jurisdiction to entertain the claim which they initiated in the Magistrates Court. The question which now arises is how costs should be determined as between the parties, both in the Magistrates Court and in this Court.

9. A complicating factor is that the appellants were unrepresented in the Magistrates Court but were represented by Mr Pertl of counsel in this Court.

10. It seems to me that some recognition should be given to the fact that the appellants were unrepresented in the court below. As unrepresented litigants they had brought the wrong proceedings to determine the question which was central to their argument, namely that the distraint was unlawful.

11. However, parties who represent themselves cannot expect that the result will be any different on the question of costs if in fact they had brought the proceedings erroneously. On the other hand, the respondents did not and have not at any stage argued that the distraint was unlawful. On the contrary, they have consistently contended that the distraint was lawful, so that they did not attack the jurisdiction of the Magistrates Court on that ground, but won a decision on the merits. I have effectively quashed that decision, given my order quashing the findings made in the Magistrates Court.

12. The main arguments agitated on the appeal to this Court was once again as to the validity of distraint.

13. Upon that question the appellants contended that the distraint was unlawful, and again that argument was resisted by the respondents, but unsuccessfully.

14. The result, however, was favourable to the respondents in the sense that the appeal to this Court was dismissed, as was the claim at first instance in the Magistrates Court, albeit on different grounds.

15. Against that somewhat convoluted background, I have reached the view that the proper order to make in all the circumstances is that there be no order as to costs either in the Magistrates Court or in this Court, so that the parties will bear their own costs of both proceedings.