The High Court dismissed Friends First Managed Pension Funds Limited’s claim for €189,736.80 in rent, insurance, interest and service charges from solicitor Paul Smithwick, finding that he had surrendered his lease by his conduct.
The claim concerned the second floor of Duke House on Duke Lane in Dublin, which Smithwick had leased for 35 years from May 1987. Friends First, successor to the original landlord, said the lease remained in force and that Smithwick owed arrears dating from an invoice issued in April 2011. Smithwick denied liability, saying he had left the premises in 2004 with the landlord’s predecessor’s agreement and that another business took over occupation and payments.
The court heard that Smithwick vacated the floor in 2003 and continued paying rent for about a year. In November 2004, he and Alias Tom Ltd entered a short-term letting arrangement, which included an option for the company to take an assignment of the remaining lease term. The option was not exercised. A.T. Uniform Ltd, controlled by Thomas Kennedy, later occupied the floor and paid rent and other charges to Robert Neill, who managed the building’s landlord interest.
Friends First argued that there had been an ineffective assignment, because the required written form had not been used, rather than a surrender. Its witnesses said the company understood it had acquired Smithwick’s continuing lease. Neill testified that he had told the plaintiff’s agent before the acquisition that A.T. Uniform occupied the floor and paid rent, although that information did not appear in written replies to title enquiries. The plaintiff disputed Neill’s recollection of when he spoke to its agent.
The judge found that Neill had encouraged Smithwick to leave and that the new occupier’s presence and payments were accepted for years without concealment. The court held that Friends First was bound by the predecessor’s actions and rejected its claim to be a stranger to the arrangement.
The ruling was that Smithwick surrendered the lease through conduct encouraged, endorsed and accepted by Neill. The court dismissed the proceedings. It made no award of the claimed arrears to Friends First.