Evans v Clayhope Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE PURCHAS |
| Judgment Date | 18 November 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1118-11 |
| Docket Number | 87/1166 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 November 1987 |
[1987] EWCA Civ J1118-11
Lord Justice Purchas
and
Lord Justice Nourse
87/1166
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Vinelott)
Royal Courts of Justice
MR. P. GROUND, Q.C. and MR. A. PADMAN (instructed by Messrs Zelin Bale) appeared on behalf of the Appellant/Plaintiff.
MR. R. COOKE (instructed by Messrs Bernstein & Co.) appeared on behalf of the Respondents/Defendants.
This appeal raises a short point of principle as to the court's power, before the rights of the parties have been determined at trial, to order one of them to meet a deficit in the sums coming into the hands of a court appointed receiver and manager for payment of his expenditure or remuneration. Vinelott J., relying on the decision of Warrington J. in Boehm v. Goodall [1911] 1 Ch. 155, has held that there is no such power and the question must now be determined by this court.
In Hart v. Emelkirk Limited [1983] 1 WLR 1289 Goulding J. held that the court has power to make an interlocutory order appointing a receiver and manager in a case where (1) a block of flats is held on leases at low rents containing covenants by the landlord to repair, with provisions for the tenants to bear the cost of the repairs by way of service charge, and (2) the landlord, for want of repair, allows the property to deteriorate. That decision, although novel at the time, was an application of the court's jurisdiction to appoint a manager in order to preserve property which is affected by the action. The dispute does not centre, as it usually does, on the ownership of the property, but on the liability to preserve it. In that respect the decision ought no doubt to be regarded as an extension of those which had preceded it, although one which is clearly beneficial in the conditions of many modern residential developments.
The order for the appointment of the receiver and manager in the present case was modelled on the order made in Hart v. Emelkirk Limited, but, as Vinelott J. pointed out, there is one very significant difference between the two cases. In Hart v. Emelkirk Limited the the service charge provisions enabled the landlord, and thus the receiver and manager, to recover from the tenants estimated contributions towards the cost of the repairs in advance of their being carried out. In the present case the cost of the repairs and of the attendant expenses is not recoverable from the tenants unless and until it has been incurred in pursuance of the landlord's obligations. Accordingly, the only sums which have come into the hands of the receiver and manager are the rents, negligible in amount, which are wholly insufficient to fund his remuneration and expenses to date, let alone the cost of the necessary repairs. Unless this appeal succeeds, so that the landlord can be ordered to pay what has to be paid, the appointment of the receiver and manager will have been of no practical value.
The facts of the present case are fully stated in the judgment of Vinelott J., which is reported at [1987] 1 WLR 225, and I do not propose to repeat them. I should emphasise that in its defence the landlord denies that at the date of the issue of the writ on 12th July 1983 it was in breach of any express or implied covenant to keep the structure and common parts of the block of flats in good repair, and that its liability in that respect cannot be determined before trial. I should also add, in order to bring matters up to date, that the landlord's appeal to this court in the proceedings for an order by way of judicial review directing the local authority to make repair grants was dismissed on 11th June 1987: see Reg, v. London Borough of Lambeth, Ex.p. Clayhope Properties Limited [1987] 3 WLR 854. Leave to appeal was refused, and a petition for leave has now been dismissed by the Appeal Committee of the House of Lords.
Boehm v. Goodall was a case of a partnership action in which the court had made, by consent, a final order for dissolution, together with orders for the usual inquiry and accounts, an order for sale of the business as a going concern, and also an order for the appointment of an individual as receiver and manager of the business until sale. Upon completion of the receiver and manager's duties there was a certified balance owing to him on his account, but no assets of the partnership available for its payment. The receiver and manager issued a summons in the action asking that the...
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Re Fraser (D)
...2 BCLC 442, applied. (2) Boehm v. Goodall, [1911] 1 Ch. 155, dicta of Warrington J. applied. (3) Evans v. Clayhope Properties Ltd., [1988] 1 W.L.R. 358; [1988] 1 All E.R. 444; [1988] BCLC 238; [1988] BCC 27, dicta of Nourse, L.J. applied. (4) Fraser (G.), In re, 2003 CILR 227, referred to. ......
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Mellor v Mellor
... ... 524F–G , 527D–528C ) ... Evans v. Clayhope Properties Ltd. [ 1988 ] 1 W.L.R. 358 , C.A. applied ... The following cases ... ...
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Serious Organised Crime Agency v Gale and another
...[1911] 1 Ch 155, Hughes v Customs and Excise Comrs [2002] EWCA Civ 734, [2003] 1 WLR 177, In re Andrews [1999] 1 WLR 1236 and Evans v Clayhope Properties Ltd [1988] 1 WLR 79 Before discussing the cases, it is convenient to consider the position as a matter of principle without reference......
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Serious Organised Crime Agency v Gale and another
...of the claim or as part of the damages.” Neither counsel before us found any help in the two cases mentioned in the footnote ( Evans v Clayhope Properties [1988] 1 WLR 358; Maritime Transport v Unitramp (“The Antaios”) [1981] 2 LlLR 284). 83 Central to Girvan LJ's reasoning, and that of Hig......