Alan Wilkinson and Others v Kerdene Ltd (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lady Justice Arden,Lord Justice Rix |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWCA Civ 44 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: (1) B2/2011/0960, (2) B2/2011/1409 (5) B2/2011/1415, (6) B2/2011/1417 (7) B2/2011/1418, (8) B2/2011/1440 |
| Date | 06 February 2013 |
[2013] EWCA Civ 44
Lord Justice Rix
Lady Justice Arden
Lord Justice Patten
Case No: (1) B2/2011/0960, (2) B2/2011/1409
(3) B2/2011/1410, (4) B2/2011/1411
(5) B2/2011/1415, (6) B2/2011/1417
(7) B2/2011/1418, (8) B2/2011/1440
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BODMIN COUNTY COURT
HH Judge Vincent
8BJ00349
Royal Courts of Justice
Strand, London, WC2A 2LL
The Appellants appeared in person
Alan Johns (instructed by Shoosmiths LLP) for the Respondent
Hearing date : 20 th November 2012
The appellants in this case own and occupy various bungalows in the St Merryn Holiday Village ("the Village") near Padstow in Cornwall. The site was originally part of the St Merryn Naval Air Station but was developed as a holiday village in the 1960s. About 50 bungalows were built at that time followed by a further 97 bungalows constructed between 1987 and 1988 in the areas known as Jasmine Way, Lily Way and Foxglove. All of the appellants own bungalows in this part of the Village. I will refer to them as the new bungalows.
The Village also included what has been described in the submissions as a leisure complex including a public house and nightclub; a shop and a swimming pool. In addition, there were tennis courts, children's play areas, a boating pool (later converted into a skateboard rink) and the roads and footpaths linking up the various parts of the Village.
The conveyancing history of the site is extremely complicated. In 1987 most (if not all) of the site was owned by Devon and Cornwall Securities Limited who were mortgagees in possession. In August 1987 they sold part of the land in their ownership (described in the conveyance as 13 building plots numbered 127–139 together with the adjacent estate roads and parking areas) to Merryn Estates Limited ("MEL"). This was followed on 29 th March 1989 by a further transfer to MEL of a large part of the Village comprising further building land, the estate roads and the pumping station but not including either the leisure complex or four areas of developed building plots, some of which had already been acquired by MEL under the 1987 conveyance.
The new bungalows were all constructed and sold off by MEL prior to the 1989 transfer using land in the Village which was already in their ownership. The conveyances were in a standard form but there is a slight difference in the wording of the later conveyances, the effect of which has been the subject of argument. I will refer to the first type of conveyance used as Form A and to the second as Form B. In the Form A conveyances, MEL conveyed to the purchaser the particular bungalow identified by reference to the plot number on the plan "together with the rights set out in the First Schedule". Clauses 3 and 4 of Form A were in these terms:
"3. The Purchaser further covenants with the Vendor that he will make payment to the Vendor as set out in part two of the Third Schedule hereto and further that he will include a covenant as set out therein in any future Conveyance of this land entered into between himself as vendor and the purchaser in such Conveyance.
4. The Vendor covenants with the Purchaser that it will maintain to a reasonable standard the roads drives car parks car parking spaces footpaths lawns pleasure grounds and other recreational facilities in the said Holiday Village and shall paint the external surfaces of the said bungalow in every third year and shall keep the foul sewer system and holding tank in good working order and emptied as and when required."
The Schedule 1 rights granted to the purchaser were as follows:
"(a) To use and enjoy and pass and repass with or without motor vehicles over and along the roads drives parking places and car parks laid out or to be laid out in the St Merryn Holiday Village.
(b) To pass and repass on foot only over the footpaths laid out or to be laid out in the said Holiday Village.
(c) To use and enjoy the lawns pleasure grounds and other recreational facilities laid out or to be laid out in the said Holiday Village.
(d) (i) To connect with drain into and use the drains sewers chambers and traps pipes wires and cables constructed or to be constructed on the said Estate and in the event of the Vendor failing to repair renew maintain and cleanse the same forthwith on such repair renewal maintenance and cleaning becoming necessary the right to enter on the adjoining and neighbouring land of the Vendor to effect such repair renewal maintenance and cleaning the Purchaser doing as little damage as possible in the exercise of this right and forthwith making good any damage done.
(ii) To enter upon the retained land of the Vendor for the purpose of carrying out repairs and renovations to the bungalow or the service pipes drains and wires thereto PROVIDED that the Purchaser shall give reasonable notice of his intention to exercise the said right and shall make good any damage caused thereby."
Part 2 of Schedule 3 (referred to in clause 3) provided that:
"(1) The Purchaser shall on the execution hereof pay to the Vendor the sum of £258.75 or a proportionate part plus value added tax thereon in respect of the period from the date hereof to the 1 st day of October next for the purpose of maintaining the roads car parks pleasure grounds and other recreational facilities at the said Holiday Village.
(2) Thereafter he shall pay to the Vendor on or before the 1 st day of October in each year such sum as shall be notified to him by the Vendor.
(3) This sum shall be computed by adding to the sum payable in the previous year such percentage increase as is indicated by the increase in the index of retail prices for the previous 12 months ending in the month of December.
(4) The Purchaser shall in any future Conveyance of the said land made between himself as vendor and a subsequent purchaser include a covenant in the terms set out at paragraphs (1) to (4) of this part of Schedule 3."
The Form B conveyances were in identical terms except for paragraph 1 of Schedule 3, Part 2. In the Form B conveyances this provided that:
"The Purchaser shall on the execution hereof pay to the Vendor the sum of £258.75 together with Value Added Tax thereon or a proportionate part in respect of the period from the date hereof to the 30 th day of September next for the purpose of carrying out the various matters referred to in clause 4 hereof."
The leisure complex described in paragraph 2 was owned and operated by Transglen Limited, a company in the same group as MEL. The evidence is that the Village was well run and maintained but in 1991 MEL and Transglen Limited sold the parts of the Village remaining in their ownership to Dreamcroft Limited (later called Grayden Leisure Limited and then St Merryn Holiday Village Limited) which in turn sold the leisure area to Salcom Limited. By 1992 Salcom Limited was in liquidation and the leisure area and adjoining land was sold on to Permabase Limited. This and Dreamcroft Limited were by then in common ownership. They in turn had financial difficulties and by January 2000 both had been wound-up. In May 2000 Wilshire Real Estate Partnership LP (as successors in title to the group's mortgagees) sold to the respondents, Kerdene Limited, all the land comprised in title numbers CL48669 and CL81055. This consisted of the land acquired by MEL under the 1989 transfer and the leisure complex and adjoining land.
After the Village had been sold by MEL and Transglen Limited in 1991 it was allowed to fall into a serious state of disrepair. Many of the leisure facilities (including the swimming pool) were closed due to lack of maintenance and the footpaths and common areas became dilapidated and overgrown. But under Kerdene's ownership serious attempts have been made to bring the Village back into a proper state of repair. It is common ground that Kerdene has not carried out all of the work which it would be required to do under the covenants contained in clause 4 of the original conveyances. It has not, for example, cut the lawns around the appellants' bungalows nor has it painted them. There are also issues about the state of repair of many of the footpaths. But it has re-surfaced the roads; upgraded the foul sewer system; and restored some of the original leisure facilities such as the tennis courts, although not in their original position. It has also created two grassed areas at the southern end of the site which can be used for walking or the exercising of dogs. There is, however, no longer any swimming pool and there have been other significant changes during Kerdene's ownership. Part of what was the leisure complex was sold by Kerdene to Herling Limited in 2006 and has been developed with the construction of 28 two-storey houses. Another part of the same land was sold to David Trathern in December 2007 for development into holiday homes and a hotel. Other parts of the Village (comprised within title number CL48669) are in the process of being developed by Kerdene into holiday homes. This is referred to as the Park Home Development.
As a consequence of the maintenance works which it has carried out, Kerdene has since 2000 sought to recover from the owners of the new bungalows the sums payable under Part 2 of Schedule 3. Some of those owners are the original purchasers from MEL and are therefore contractually...
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