Brew Brothers Ltd v Snax (Ross) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE SACHS,LORD JUSTICE PHILLIMORE |
| Judgment Date | 22 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0722-4 |
| Date | 22 July 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0722-4
Lord Justice Harman
Lord Justice Sachs and
Lord Justice Phillimore
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Megaw - London)
Mr. LIONEL BLUNDELL, Q.C. and Mr. DAVID HUMPHREYS (instructed by Messrs. Horace W. Davies & Co.) appeared on behalf of the Appellants (Second Defendants).
Mr. LESLIE BOREHAM, Q.C. and Mr. ROGER TITHERIDGE (instructed by Messrs. Bridges, Sawtell & A.J. Adams) appeared on behalf of the Respondents the Plaintiffs.
Mr. MAURICE DRAKE, Q.C. and Mr. HAROLD BURNETT (instructed by Messrs. Cripps, Harries, Willis & Carter) appeared on behalf of the Respondents the First Defendants.
These proceedings concern No. 396 Sutton Common Road, Surrey. This is the end of a terrace consisting of shops with dwellings of two stories above, Nos. 384 to 396 (even numbers) along the road. The terrace evidently remained unfinished, the flank or end wall of No. 396 being a blank wall part of which is described on the plan as a party wall and was intended obviously to serve as a party wall to the next house, which was never built. No. 396 differs from the other houses in the terrace in that its ground floor consists not only of the shop which corresponds with the rest of the terrace but a covered way adjacent to the flank wall and leading to the rear. The dwelling is built not only over the shop but over the covered way. This latter leads into the yard forming the rear part of the property, which in turn leads into a passageway running behind the remaining six houses in the terrace, each of which appears to have rights-of-way and of drainage over the rear passageway and along the covered way into the high road. It is common ground that the boundary wall was adequately supported by its foundations when built. The terrace was apparently constructed in about 1937 and in that year No. 396 was sold to the immediate predecessors of the second defendants and conveyed by a document of the 14th April, 1937, for a consideration of £1,500, "Together with the shop and premises on the part coloured red with upper floors over the parts coloured red and red hatched black on the said plan…. Subject to a liability to maintain the roadway coloured green hatched black and red hatched black" (this includes the covered way) "in good and sufficient repair (subject to fair contributions being made from time to time by all others entitled to use the same)…. Excepting and Reserving to the Vendors and the owners or occupiers for the time being of the adjoining premises known as 384 to 394 (even inclusive) Sutton Common Road aforesaid….and of the vacant land on the north-west of the premises hereby assured" (that is now the plaintiffs' property) (a) a right-of- way and (b) the free passage of gas, water and soil coming fromany other of the said buildings by and through the sewers, drains, pipes, mains, wires and watercourses in or under the premises thereby assured and a right as often as need be to enter the premises for the purpose of cleansing, maintaining, repairing or renewing the drains.
The effect of this is that the covered passageway and the yard behind it became the property of the second defendants, subject to rights-of-way and drainage in the occupiers of the remaining houses in the terrace. The drains of all the houses passed under the covered way.
In 1963 the vacant land abutting on 396 to the north-west was acquired by Esso Petroleum Company, who prepared it for a filling station by digging a large excavation for a tank and other trenches. Two persons, one Smellie and one Hobdall, then had occasion to inspect the flank wall of No. 396 in Esso's interest in order to see its condition in case the excavations Esso were about to make should be said to affect it. Mr. Smellie, who was a qualified surveyor employed by Esso, said that there were certain cracks in the flank wall which led him to suppose there had been some movement in it. At the same time, Mr. Hobdall, an employee of the contractors who were digging the excavations, examined the flank wall and found certain cracks in it indicating movement. Nobody appears to have taken any alarm at these cracks, which were, I think, on the evidence old settlements of the wall dating possibly as far back as the war, when damage may have been done by enemy action. In particular the drains under the tunnel were fractured, though no one knew this and they apparently continued to function normally. The filling station was left to the plaintiffs.
In about 1965 the then tenant of 396 became bankrupt, and his trustee in bankruptcy disclaimed the then existing lease so that the property reverted to the second defendants, who let it to the first defendants by a lease of the 30th June, 1965, for a term of 14 years from Midsummer, 1965, at £600 a year. In clause 2 of this lease are a number of covenants by the tenants with thelandlords, Including the following:
2(c) To execute at the Tenant's own cost all such works as are or may under or in pursuance of any Act of Parliament already passed or hereafter to be passed or be directed or required by any local or public authority" — and so on.
"(e)" (this is the repairing covenant): "During the said term as often as occasion shall require. well and substantially to repair uphold support maintain cleanse and keep in repair the demised premises and all appurtenances belonging thereto and at the end or sooner determination of the said term to surrender and yield up to the Landlords the demised premises together with all additions and improvements thereto and all fixtures (except trade fixtures) in good and substantial repair".
Then (f): "To pay on demand a reasonable share to be ascertained by the surveyor for the time being of the Landlords of the expense incurred in maintaining repairing and cleansing all party walls fences drains way and other easements used or enjoyed or capable of being used or enjoyed by the owners or occupiers of the demised premises in common with the owners or occupiers of any adjoining premises".
Then I should read (i): "To permit the Landlords and its agents with or without workmen and others twice in every year at all reasonable times in the day time to enter upon and view the condition of the demised premises and to repair and make good all decays defects and want of repair due to the breach by the Tenant of any covenant on its part herein contained of which notice in writing shall be given by the Landlords within three months after the giving of such notice".
Then clause 4: this is the proviso, and I should read (c): "From the demise there shall be excepted unto the Landlords their predecessors in title and their tenants the free and uninterrupted use of all such gas water heating and other pipes electric mains electric and other wires and appliances watercourses sewers and drains as now run into through along over or about the demised premises and the right as often as need be toenter the demised premises for the purpose of cleansing repairing or renewing the said pipes, wires sewers or drains of or leading to or effecting repairs to the adjoining or neighboring buildings …."
The parcels are described in a schedule which I must read. It contains these words: "All that piece or parcel of land situate and being in Sutton Common Road" (and so on) "Together with the dwelling house shop and premises erected thereon on the part coloured red and red hatched black on the said plan known as No, 396 Sutton Common Road aforesaid the Tenant keeping the roadway coloured green hatched black and red hatched black in repair and subject to fair contribution from time to time from all others entitled to use the same (the amount in case of dispute to be conclusively determined by the Landlords' surveyor) Except and Reserving to the Landlords and their tenants and all others authorised by them or otherwise entitled thereto the right at all times and for all purposes to pass over the ground floor portion of the property hereby demised and delineated on the plan,…and thereon coloured green hatched black and red hatched black (being the roadway hereinbefore referred to)".
There was some controversy about the true construction of this lease. First it was denied, but subsequently admitted, that what is defined as "the demised premises" included the drains under the tunnel. Even after it was admitted that these drains were included it was contended by the tenants that the repairing covenant (clause 2 (e)) did not include the drains. This contention was based on clause 2 (f) and is in my opinion quite untenable. The fact that the repairing covenants may to some extent overlap does not excuse the covenantor from performing each of them - see per Lord Justice Fletcher Moulton in ( Lurcott v. Wakely 1911 1 Zing's Bench at page 915).
Next, clause 2 (i) was in dispute, the tenants contending that the words "and to repair" in line 4 refer to the landlords and not to the tenants. In my opinion this construction will not hold water. This is a covenant by the tenants first to permit thelandlords to inspect, and second, themselves to repair defects pointed out by the landlords on inspection. I do not attach any importance to this controversy, but mention it because the judge based an argument upon it that the landlords, being under this clause able to enter and make good defects, were authorising them. That I regard as a mistaken construction.
At the end of 1965 a large tree standing on the pavement opposite the end of the flank wall was cut down. In November, 1966, there suddenly appeared large cracks in the flank wall which on inspection turned out to be four inches out of true, and it was obvious to everyone that it was in a dangerous condition. Both defendants recognised that...
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