Caldy Manor Estate Ltd v Farrell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 24 July 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0724-6 |
| Date | 24 July 1974 |
| Court | Court of Appeal (Civil Division) |
[1974] EWCA Civ J0724-6
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Vice-Chancellor Blackett-Ord, Liverpool.
Lord Justice Russell
Lord Justice Stamp and
Lord Justice Lawton
Mr MARTIN NOURSE, Q.C. and Mr JOSEPH TURNER (instructed by Messrs Dingle, Kingan & Co., Wallasey) appeared on behalf of the Appellant (Defendant).
Mr PAUL BAKER, Q.C. and Mr E.L.G. TYLER (instructed by Messrs Simpson, North, Harley & Co., Liverpool) appeared on behalf of the Respondents (Plaintiffs)
The Judgment I am about to deliver is the judgment of the Court.
This is a case in which an attempt has been made, by selection of preliminary points of law, to shorten proceedings should the decision of them be one way. Rarely in our experience have such attempts been wholly successful.
In 1931 the Plaintiffs owned a considerable estate with a view to its residential development. In that year one Walker acquired one area or plot with a dwellinghouse thereon -the Fairfield House plot of about 1 acre. The purchaser entered into various covenants with the Plaintiffs against erection of any buildings thereon except the one dwellinghouse; that the house "shall have the land hereby assured attached appurtenant and exclusively belonging to it": that the dwellinghouse (with its offices, appurtenances and land) should be used as one private dwellinghouse only: and other covenants as to user. Subsequently, Lord Fairfield acquired Fairfield House and plot. He was anxious to acquire from the Plaintiffs a contiguous piece of land about 800 square yards in area, it is suggested, though not admitted, in order to build thereon a gardener's cottage. In 1940 the Plaintiffs conveyed this contiguous plot - "the cottage plot" - to Lord Fairfield. In the conveyance he was called "the Purchaser" The habendum was expressed to be "subject … to the covenants and conditions hereinafter contained". Clause 2 of the conveyance opened with these words: "The Purchaser for himself and his successors in title with intent to bind the land hereby conveyed into whosesoever hands the same may come hereby covenants with the Vendors as follows". Sub-clause (a) forbade building on the cottage plot other than one privatedwellinghouse. Sub-clause (b) was in these terms: "Such dwellinghouse shall be detached and set back at least forty five feet from the said proposed road and shall be appurtenant to the adjoining dwellinghouse belonging to the Purchaser hereinafter mentioned". By sub-clause (c), "The Purchaser shall forthwith fence … and maintain such fences in good and sufficient repair". Sub-clause (d) provided that the said dwellinghouse should be used as one private residence only. Sub-clause (e) was in these terms: "The Purchaser shall not sell the said land hereby conveyed or any part thereof separately from the adjoining land of the Purchaser with the dwellinghouse thereon erected and known as Fairfield House which said land and dwellinghouse are comprised in a Conveyance dated the ninth day of November one thousand nine hundred and thirty eight and made between Ernest James Walker of the one part and the Purchaser of the other part". Sub-clauses (f), (g) and (h) wore negative covenants in general terms as to user, advertisement hoardings and the like, and concerning approval of plans by the Plaintiffs for any building.
After various conveyances of the house and cottage plot together, the Defendant acquired them in 1972. He proposes to sell the cottage plot, retaining the house plot. The Plaintiffs objected, launched these proceedings, and moved for interlocutory relief to restrain him from selling the cottage plot separately from the house plot. On tho hearing of tho motion it was arranged to try two preliminary points of law. These, as stated in the Order appealed from, were as follows: "First whether upon the true construction of the Conveyance dated 6th June 1940 in the Writ in this actionissued the 1st May 1975 mentioned the covenant contained in clause 2(e) thereof was intended to be binding only on the Right Honourable...
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Neo Hock Pheng and Others v Teo Siew Peng and Others
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