Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 09 July 2010 |
| Neutral Citation | [2010] EWHC 1725 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Nos: IHC 326/10 IHC 426/10 |
| Date | 09 July 2010 |
[2010] EWHC 1725 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Mr Justice Wyn Williams
Case Nos: IHC 326/10 IHC 426/10
IHC 451/10 IHC 512/10
Mr Jonathan Arkush (instructed by Stockler Brunton) for the Claimant
Mr James Hanham (instructed by Clifford Chance LLP) for the Defendant
Hearing date: 7 July 2010
Approved Judgment
Mr Justice Wyn Williams:
I have before me an application for summary judgment. The application was made by an application notice dated 17 June 2010 in proceedings which have been ongoing since 22 April 2009. This is the second application for summary judgment which the Claimant has made. The first application was determined by Deputy Master Mark on 11 November 2009. The Deputy Master declined to give summary judgment; rather he permitted the Defendant to amend its defence and counterclaim. This application is said to be made on evidence which was not considered by Deputy Master Mark and which has been adduced to demonstrate that the Defendant's amended pleading is doomed to fail.
The relevant background circumstances are as follows. The Claimant is the head lessee under a lease made 23 June 1978 of the premises known as Eaton Mansions, Cliveden Place London (hereinafter referred to as “the building”). The building consists of a number of flats. The Claimant is a management company formed so as to manage the building on behalf of the owners of the flats. Throughout the hearing before me the freeholder was called “the Grosvenor Estates” or “Grosvenor.” In this judgment I shall call the freeholder “Grosvenor.”
On the same date as it became the head lessee, the Claimant created subleases in respect of at least two of the flats. Those were numbers 8 and 10. The subleases were for a term which was identical to the term of the head lease less 5 days. It is common ground that the subleases do not include the roof of the building, the external chimney stacks of the building at roof level or the chimney flues in the building, save insofar as they served exclusively the flat demised.
The Defendant is a Panamanian company which is owned by a Cayman Island Trust. The Defendant was incorporated on 8 June 1979. It was incorporated, specifically so as to acquire the underlease in flats 8 and 10. The sub leases were acquired shortly after incorporation.
I take the next part of the relevant factual background from the amended defence and counterclaim in these proceedings. In or around 1980 the Defendant installed 3 air conditioning units and 3 associated condenser units on the flat roof of the building. Those units were installed together with their associated pipe work, wires, ducts and other apparatus. All those works were carried out, so it is said, with the consent of the Claimant. In or around the mid 1980s the Defendant installed a fourth air conditioning unit and associated condenser unit on the flat roof of the building – again with associated pipe work, wires, ducts and other apparatus. In 1995 a fifth air conditioning unit was installed on the flat roof of the building; yet again there was an associated condenser unit and associated pipe work, wires, ducts and other apparatus. Finally, in or around 1997 or 1998 the Defendant installed a sixth air conditioning unit, an associated condenser unit on the outside wall of the building outside flats 8 and 10 and associated pipe work, wires, ducts and other apparatus.
The Defendant accepts that the work undertaken in the mid 1980s, 1995 and 1997/1998 was carried out without any licence or consent from the Claimant.
Smith Waters is a firm of managing agents retained by the Claimant. By letter dated 14 February 1996 Smith Waters notified the Defendant that the lessee of flat 12 had complained of noise levels emanating from the air conditioning apparatus then existing; a request was made to the Defendant to consider a major overhaul or removal of the units. By letters dated 4 November 1996 and 21 August 1997 Smith Waters requested the Defendant to replace the existing units with lighter and quieter modern units.
On 17 August 2006 Smith Waters either required or asked the Defendant to relocate and re-commission the air conditioning units then existing so as to facilitate external repairs and decoration to the building.
The Defendant asserts that by virtue of these facts (and others which I need not detail) the Claimant impliedly represented to the Defendant that it did not and would not object to underlessees within the building maintaining on the building a reasonable amount of air conditioning apparatus and associated pipe work, wires, ducts and other apparatus of reasonable quality and size and in reasonable positions and that the grant of consent for such apparatus would not be unreasonably withheld or delayed in respect of air conditioning apparatus which was of a reasonable quality and size and located in a reasonable position (see paragraphs 15 and 16 of the amended defence and counterclaim).
In 2006 the Defendant commenced works of refurbishment to flats 8 and 10 with the consent of the Claimant. It decided that it would remove and replace the air conditioning apparatus with modern quieter and more efficient units rather than refurbish the existing apparatus. In or around June 2007 the Defendant attached 2 air conditioning condensers to the chimney stack of the building, installed 2 air conditioning units on the roof of the building, broke through the chimney stack at roof level and inserted air conditioning pipe work leading from the roof of the building to flats 8 and 10 through the chimney stack. It is common ground that the Claimant did not give its consent for that work.
In February 2008 the Defendant removed the 2 air conditioning units which had been installed on the roof. However, on or about 6 December 2008 the Defendant installed 2 different air conditioning units on the roof of the building. It then connected those units and the units attached to the chimney stack to the pipe work inside the chimney stack. Again, it is common ground that the Claimant did not give consent for this work.
In these proceedings the Claimant alleges that the Defendant committed the tort of trespass by installing air conditioning units on the roof of the premises, attaching units to the chimney stack and breaking through the chimney stack and installing pipe work so as to permit the use of the units within flats 8 and 10. At the time the proceedings were issued the primary relief sought was an injunction compelling the Defendant to remove the air conditioning units and all associated apparatus; further the Claimant sought an order compelling the Defendant to carry out necessary works of restoration.
It appears to be common ground now that injunctive relief is no longer appropriate, if the Claimant succeeds in its claim. That is because the Defendant has sold its interest in the underleases. Accordingly the relief now sought by the Claimant is an order for damages. If the application for summary judgment succeeds the Claimant seeks an order that there should be judgment for the Claimant with damages to be assessed.
As I have said already, the Defendant alleges that the Claimant has made an implied representation to the Defendant which now precludes the Claimant from unreasonably withholding consent to the provision of air conditioning apparatus on the roof of the building which is of a reasonable quality and size and which is located in a reasonable position. For the purposes of this application, the Claimant is content to proceed on the basis that it is arguable that such a representation has been made and that this gives rise to an estoppel which precludes the Claimant from unreasonably withholding (or for that matter delaying) its consent to any request by the Defendant that the Defendant should be permitted to install air conditioning apparatus on the roof of the building which is of a reasonable quality and size and which is in a reasonable position. In summary, however, the Claimant contends that whichever way one looks at the relevant facts it is impossible to conclude that the Claimant has, even arguably, unreasonably refused to consent to the works undertaken by the Defendant or has unreasonably delayed in giving such consent.
If the Claimant is correct in that contention, it is entitled to summary judgment. In a moment I will turn to consider the evidence which is adduced and which bears upon this issue. It is necessary first, however, to point out that a crucial aspect of the position adopted by the Claimant is that it was never in a position to authorise the Defendant's works or give consent for the apparatus positioned on the roof to remain because Grosvenor has never given its consent. Grosvenor's stance is said to be important because of a covenant which exists in the head lease between Grosvenor and the Claimant. The covenant is in the following terms:—
“No alterations shall …..be made in the construction, height, elevation, external or internal architectural appearance or internal arrangements of the demised premises or any part thereof or in the chimney stacks or chimney pots thereof….…..”
As a matter of interpretation and adopting the interpretation which is most favourable to the Defendant this clause prohibits alterations which have the effect of altering the external architectural appearance of the building; it also prohibits alterations to the chimney stacks or chimney pots. Obviously, Grosvenor may relax the...
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