Becker v Partridge
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0304-1 |
| Court | Court of Appeal |
| Date | 04 March 1966 |
[1966] EWCA Civ J0304-1
The Mastlr of the Rolls
(Lord Denning)
Lord Justice Dankwets and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
From His Honour Judge Sir Alun Pugh
Bloomsbury County Court
MR R.A. SCARAMANGA (instructed by Messrs Saunders & Co.) appeared as Counsel for the Appellant.
MR V.G. WELLINGS (instructed by Messrs Harbottle & Lewis) appeared as Counsel for the Respondent.
LORD JUSTICE DANCKWERTS: The Judgment I am about to read is the Judgment of the Court.
This is an appeal from a judgment of His Honour Judge Sir Alun Pugh dated the 28th July, 1965, at the Bloomsbury County Court. That judgment was in fact a judgment refusing an application to recall the judgment of the learned County Court Judge delivered on the 20th July, 1965.
The action was one for rescission of an agreement to purchase the residue of an under lease of a second floor flat at 27; Devonshire Place, St. Marylebone in the County of London, with a counterclaim for specific performance by the vendor. By his judgment of the 20th July, 1965, the learned County Court Judge dismissed the claim for rescission and ordered specific performance of the agreement on the counterclaim with certain consequential relief.
By the agreement of the 26th October, 1964 (Clause 1), Mr Partridge, the defendant, agreed to sell and Mrs Becker, the plaintiff, agreed to purchase the property described in the first and third schedules at the price of £250 which had been placed on deposit at the Westminster Bank, Marylebone, in the joint names of the vendor's and the purchaser's solicitors. Clause 2 incorporated the Law Society's Conditions of Sale, 1953 (thereinafter referred to as "the general conditions") so far as they were not varied by or inconsistent therewith and were applicable to a sale by private treaty, and subject also to the special conditions therein contained. Clause 3 of the contract was in these terms: "The vendor's title which has been accepted by the purchaser shall commence with an under lease dated the 28th day of December, 1963, and the purchaser shall raise no requisition or objection thereon". Clause 4 provided that completion of the sale and purchase would take place on the 23rd December, 1964, when vacant possession of the property would be given. Clause 5 provided that the vendor was selling as beneficial owner. By Clause 7 it was provided that the propertywas also sold subject to and with the benefit of the matters referred to in the second schedule thereto and copies of any documents referred to therein having been produced to the purchaser, she should be deemed to purchase with full knowledge thereof and should raise no requisition or objection thereto. Clause 8 provided that the sale included the chattels, fittings and other separate items specified in the third schedule thereto, the proportion of the said purchase price attributable thereto "being £250 (which was in fact the whole price).
The description of the property in the first schedule was: "All that flat comprising three living rooms, hall, kitchen and bathroom situated on the second floor of the building known as 27 Devonshire Place, St. Marylebone in the County of London together with and subject to the rights granted and reserved and subject to the covenants and conditions contained in the under lease referred to in clause 3 hereof". The second schedule was in these terns: "Hatters referred to in Clause 7. The provisions of the under lease dated the 28th December, 1963, made between Pauline Mary Smith of the first part and the vendor of the second part referred to in clause 3 hereof".
The reason for the payment of the sun of £250 into the Westminster Bank was that Mrs Becker entered into possession of the property on the 26th October, 1965, the date of the agreement. She thereby became subject to the terms of No. 6 of the general conditions which (amongst other things) required her "to pay all rents, rates, taxes, costs of insurance and repairs and other outgoings in respect of the property", and required her also to pay interest on the purchase money. There was also a provision in. the same condition t-:at if the vendor should at any time in writing so demand or if the contract is rescinded or becomes void, the purchaser should forthwith deliver up possession of the property to the vendor in as good a state of repair and condition as it was at the time of taking possession.
Owing to the provisions of Section 44(2) and Section45(1) of the Law of Property Act 1925 the under lease of the 28th December, 1963, provided for as the commencement of title in clause 3 of the agreement, was in fact the same as that provided for by law and the purchaser's enquiries were restricted accordingly. But the assumptions which Section 45(1) and Section 45(3) require a purchaser to make are only "unless the contrary appears aid unless a purchaser is prohibited from raising objection to the title by a bona fide end dear special condition, a purchaser will not be prevented from objecting to the vendor's title by reason of a defect which the purchaser discovers by other means.
The authorities in regard to this natter will be discussed later, but meanwhile it is necessary to consider the devolution of this leasehold flat.
This starts with a lease dated the 2nd January, 1957, by Howard de Walden Estates Limited. to Miss Margaret Eileen Alexander of 27 Devonshire Place (the whole house) for the years from the 6th July, 1956 (i.e. to the 5th July, 1972) at rent of £500 per annum. There is a restriction of use to (a) a private dwelling house and (b) self-contained private residential flats (except the basement, which is only to be used for the service of other parts). There is also a covenant against making alterations without the lessor's licence in writing. And there is a condition of re-entry on failure to pay rent or breach of covenant.
On the 23rd July, 1959, there was an under lease by Cily Sophie Behr to Ernost Geoffrey Williams of the second, third and fourth floors for a term from the 24th June, 1959, to the 1st July, 1972, at a rent of £525 per annum plus fire insurance. There were covenants not to make alterations, to use and to occupy as a private dwelling-house or as two private residential flats, and not to assign, underlet, etc., without the landlord's consent in writing (not to be unreasonably withheld). And there was a condition for re-entry.
On the 8th August, 1961, there was a licence by Howard do Walden Estates Limited. to Mrs Esther Caseley-Hayford (who apparently had acquired the reversion on the term granted by Cily Sophie Behr to Ernest Geoffrey Williams) to carry out certain alterations on the fourth floor. A Mr Sigsworth was to be allowed to occupy the second and third floors for residential purposes until the 1st July, 1963, but he was not to underlet or part with possession of any part of the second and third floors. And a Mr Truscott who was to be allowed to occupy the fourth floor till the 1st July, 1963, was not to underlet or part with the possessioiy of any part of the fourth floor. Howard de Walden Estates Limited. were evidently keeping a close control over the premises.
On the 7th March, 1962, Mrs Caseley-Hayford licensed truest Geoffrey Williams to underlet the fourth floor to Mr Truscott and...
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