Eryl Rosser v Pacifico Ltd (Formerly Bronte Capital Ltd)

JurisdictionEngland & Wales
JudgeMr Justice Zacaroli
Judgment Date05 May 2023
Neutral Citation[2023] EWHC 1018 (Ch)
Docket NumberCase No: BL-2021-CDF-000008
CourtChancery Division
Between:
Eryl Rosser
Claimant
and
Pacifico Limited (Formerly Bronte Capital Limited)
Defendant

[2023] EWHC 1018 (Ch)

Before:

Mr Justice Zacaroli

Case No: BL-2021-CDF-000008

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN WALES

BUSINESS LIST (ChD)

Cardiff Civil and Family Justice Centre

2 Park Street

Cardiff CA10 1ET

Catherine Collins (instructed by Lewis Lewis & Co Ltd) for the Claimant

Mr Jason Jones-Hughes, the sole director, represented the Defendant

Hearing dates: 18, 19 and 20 April 2023

Mr Justice Zacaroli

Introduction

1

The claimant (“Mrs Rosser”) claims damages for alleged misrepresentations made by or on behalf of the defendant (“Pacifico”) prior to the purchase by Mrs Rosser from Pacifico of a leasehold property, apartment 1 at 15 Hamilton Street, Pontcanna, Cardiff (the “Property”) on 8 July 2016.

2

Mrs Rosser claims that the Property was marketed and sold with the benefit of two bedrooms on the second floor, one at the front and one at the back, and with the benefit of a velux rooflight window (the “Velux Window”) in the front bedroom. In fact there was no planning consent for the Velux Window, which subsequently had to be removed, leaving the front room on the second floor without any source of natural light or ventilation. As such it was unsuitable to be used as a bedroom.

3

The claim is brought under s.1 of the Misrepresentation Act 1967, which provides:

“Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true”.

4

Accordingly, it is for Mrs Rosser to establish that:

(1) an actionable representation or representations was or were made to her;

(2) one or more of those representations was untrue;

(3) she relied on it or them in entering into the contract to purchase the Property; and

(4) as a result she suffered loss.

5

If Mrs Rosser establishes those matters, then the burden falls on Mr Jones-Hughes, as the controlling mind of the defendant, to prove that he had reasonable grounds to believe, and did believe up to the time the contract was made, that the representation or representations was or were true.

The Parties

6

Mrs Rosser provided a witness statement and attended for cross-examination. Pacifico appeared by its sole director, Mr Jason Jones-Hughes (“Mr Jones-Hughes”). Due to the fact that he and members of his family were suffering from Covid, and live in Sydney Australia, the trial was conducted remotely via CVP (apart from opening argument, where Mrs Rosser and her Counsel, Ms Collins, were present in court, because Mr Jones-Hughes's request that the trial be dealt with wholly remotely was received too late).

7

I found both Mrs Rosser and Mr Jones-Hughes to be honest witnesses, doing their best to assist the Court.

The facts in more detail

8

In 2016 Mrs Rosser was seeking to buy an investment property, with a minimum of two bedrooms, in Cardiff. She was introduced to the Property, which had recently been renovated by Pacifico, by estate agents, Jeffrey Ross (the “Agents”). There were no particulars provided, but she visited the Property and immediately liked it.

9

15 Hamilton Street was originally one house. It was developed by Pacifico in 2015, by turning it into two apartments, one at the front and one at the rear. Planning permission was sought on Pacifico's behalf by MTS Surveyors. It was granted on 5 February 2015. The plans accompanying the permission show the apartment spread over three floors: a kitchen area and a living area on the ground floor; one large room on the first floor, described on the plans as a bedroom, with a bay window and a bathroom; and on the second floor a further room that extends across the whole floor into the eaves at the front and into a dormer window at the rear, described as a bedroom, with an ensuite bathroom to the rear.

10

As built, however, the Property was configured differently. As shown on the plans that accompanied the lease of the Property (and which later accompanied the draft sale and purchase agreement provided to Mrs Rosser), the ground floor is configured as a kitchen and dining area, the first floor comprises a lounge plus bathroom, and the second floor is divided into two rooms, one at the front and one at the rear, divided by an internal wall. Both rooms are described as bedrooms. There is no suggestion that any of these alterations constituted a breach of planning permission, apart from the installation of the Velux Window.

11

When Mrs Rosser viewed the Property, she had not seen any of the plans (either those accompanying the planning permission or those accompanying the lease). She believed, however, that the first floor was intended to be a lounge, having a TV socket and power points configured, she said, as she expected to find in a lounge or other living area. She also believed that the two rooms on the second floor were intended to be bedrooms, as they were carpeted and had power points in places where one would expect beds to be placed so as to accommodate bedside lamps.

12

It is common ground that, following the division of the second floor into two rooms, the only light source to the front room was the Velux Window. The other bedroom benefitted from the dormer window to the rear.

13

Although Mr Jones-Hughes does not recall precisely when the Velux Window was installed, he now accepts that it was installed during the development of the Property in 2015. He also accepts that he now understands that it needed planning permission, and that no permission had been obtained. He says that he did not understand this at the time. The plans accompanying the planning permission showed the external elevation from the rear and sides, but not the front, suggesting that no permission was given for any works affecting the front external elevation. That is confirmed by condition 6, which states that the permission did not extend to any works to the front elevation that may require planning permission, and that no details of any such works had been submitted.

14

The relevant building regulations were, however, complied with. A certificate of completion in respect of building regulations was received on 6 July 2016, giving the date of completion as 5 July 2016. This refers to the conversion of 15 Hamilton Street into one two-bedroom apartment and one three-bedroom apartment, the latter referring to the Property. This certificate is irrelevant so far as planning permission is concerned. At the bottom, the following appears: “This Certificate does not cover clearance of planning conditions”. It is common ground that the front bedroom on the second floor complied with building regulations because, as a result of the Velux Window, it had its own source of natural light and ventilation. Without the Velux Window, however, it would not have complied with building regulations and could not lawfully have been used as a bedroom.

15

On the Monday (13 th June 2016) following Mrs Rosser's visit to the Property, she received an email from Ms Jessica Taylor of the Agents. Ms Taylor referred in this email to the front room on the second floor as a bedroom, noting that there were no built in wardrobes in it, but that she could arrange to put Mrs Rosser in touch with the builder if she wished to discuss it with him.

16

Subsequently, Mrs Rosser's solicitors received lease plans from Pacifico's solicitors. These labelled the first floor room as a lounge, the front second floor room as “Bed 01”, and the rear second floor room being labelled “Bed 02”.

17

During the conveyancing process, Mr Jones-Hughes signed, on behalf of Pacifico, a Law Society Information Form, in which he confirmed, relevantly, that:

(1) the seller was not aware of any breaches of planning permission conditions, or work that did not have all necessary consents; and

(2) there were no planning issues to resolve.

18

Mrs Rosser was satisfied and went ahead with the purchase, completing on 8 July 2016. She paid the asking price, £299,950.

19

In October 2017, she received a letter from the Council notifying her that there was an unauthorised rooflight installed in the roof of the Property, and warning her of potential enforcement action.

20

While ordinarily the installation of a rooflight might be undertaken as a permitted development, the right to do so had been removed by an Article 4 Direction as a result of the Property being in a conservation area Accordingly, planning permission had been required, but had not been obtained.

21

Mrs Rosser was advised that she would be unable to obtain retrospective planning consent. Accordingly, to avoid enforcement action she had the Velux Window removed, and – in order to maintain the Property as a two bedroomed apartment – converted the living room on the first floor to a bedroom, and installed a bathroom in the front room on the second floor.

Representations

22

Mrs Rosser contends that, on the basis of the above matters, the following representations were made to her:

(1) That the front room on the second floor was capable of being used as a bedroom; and

(2) That the seller believed, and had reasonable grounds for believing, that there were no breaches of planning permission conditions or any work that did not have all necessary consents.

23

Whether and, if so, an actionable representation is made is to be judged objectively, according to the impact that whatever is said may be expected to have on a reasonable representee in the...

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1 cases
  • Tactus Holdings Ltd v Philip Mark Jordan
    • United Kingdom
    • King's Bench Division (Commercial Court)
    • 1 March 2024
    ...citing Barings plc (in liquidation) v Coopers & Lybrand [2002] EWHC 461 (Ch) at [44]–[52] (Evans-Lombe J) and Rosser v Pacifico [2023] EWHC 1018 (Ch) at [30]–[38] (Zacaroli J). While these two authorities relate to very different factual contexts, I accept of course that statements of opi......

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