Gateway Assets Limited Against C V Panels Limited
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2018] CSOH 48 |
| Date | 16 May 2018 |
| Docket Number | CA95/17 |
| Court | Court of Session |
| Published date | 16 May 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 48
CA95/17
OPINION OF LORD CLARK
In the cause
GATEWAY ASSETS LIMITED, a company incorporated under the Companies Acts
and having its registered office at Maybrook House, 40 Blackfriars Street, Manchester,
M3 2EG
Pursuer
against
C. V. PANELS LIMITED, a company incorporated under the Companies Acts and
having its registered office at 230 Balmore Road, Glasgow, Scotland, G22 6LJ
Defender
Pursuer: Barne QC; DWF LLP
Defender: Brown; BTO Solicitors LLP
16 May 2018
Introduction
[1] This action concerns a lease of premises at Unit 2C, Clyde Gateway Trade Park,
Rutherglen between Clyde Gateway Developments Limited and the defender (“the lease”).
The term of the lease is 10 years from 3 December 2012 (the “date of entry”). In 2015, the
pursuer succeeded to the landlord’s interest in the lease. Clause 3.2 of the lease provides for
a break option in the following terms:
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“The Tenants shall be entitled to terminate the lease on the 5th anniversary of the
Date of Entry by serving upon the Landlords at least 6 months prior written notice
thereof (time being of the essence).”
[2] The pursuer seeks declarator that the defender as tenant under the lease has not
validly exercised the option in terms of clause 3.2 of the lease to terminate the lease on the
fifth anniversary of 3 December 2012. The case called for a proof before answer.
Background
[3] By letter dated 10 December 2015, the pursuer wrote to the defender, stating inter alia
that:
“As your new Landlord, we write to confirm that we have appointed David Samuel
Asset Management Ltd/ David Samuel Management Limited … to act as asset
manager and they are authorised to deal with all aspects of management including
the collection of rent and service charges…
Please therefore remit all rent and other charges etc to the respective company, but
deal with all communications and correspondence through the offices of David
Samuel Management or David Samuel Asset Management Ltd.”
This letter was enclosed with a letter, also dated 10 December 2015, from David Samuel
Asset Management Limited which referred to the property and stated inter alia that:
“We write to confirm that David Samuel Asset Management Limited has been
appointed as the managing agent of the above property and enclose a letter of
confirmation to this effect from Gateway Assets Limited.”
In both letters, the address of David Samuel Asset Management Limited was given, and
after the name of the street it stated “Manchester” followed by the post code.
[4] In early 2017, the shares in the defender were purchased by Allied Vehicles Limited.
Stephen Pryor of Allied Vehicles Limited sent a letter dated 19 June 2017 (“the June letter”),
with the first line of the address stating “David Samuel Asset Management” and the next
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line stating “CCL Estate Company”. The word “Manchester” was not in the address. The
letter went on to state:
“As per our lease agreement with yourselves, please accept this letter as written
confirmation of our desire to terminate our lease on the property located at Unit 2C,
Clyde Gateway Trade Park, Dalmarnock Road, Rutherglen G73 1AN. This decision
has been previously communicated verbally and in person.”
The June letter was signed by Mr Pryor, who designed himself “Director of Finance, Allied
Vehicles Ltd, CV Panels Ltd”. There was no reference to CCL Estate Company in either of
the letters to the defender dated 10 December 2015 sent by or on behalf of the pursuer.
[5] It was accepted by the defender that the June letter was ineffective to constitute an
exercise of the break option in terms of clause 3.2 of the lease, having been served less than
six months before 3 December 2017.
[6] By letter dated 26 June 2017, the pursuer’s agents wrote to the defender stating that
the June letter had not validly exercised the break option under the lease. By letter dated
24 July 2017, the defender’s agents replied, stating the defender’s position that the break
option had been validly exercised and that the lease would terminate on 19 November 2017.
The defender’s agents referred to and relied upon a letter which they claimed had been sent
on 24 April 2017 (“the April letter”). The pursuer’s agents replied, requesting a copy of the
April letter and stating that it had not been received. The defender’s agents subsequently
provided the pursuer’s agents with a copy of the April letter. The defender’s agents stated
that it was the defender’s position that the April letter had been sent and received. The
April letter was addressed to “David Samuel Asset Management” and stated in the next line
“CCL Estate Company”. The word “Manchester” was omitted from the address. It was
therefore addressed in exactly the same terms as the June letter. The April letter referred to
the subjects of the lease and went on to state:
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Lujo Properties Ltd Against Gruve Ltd
...SLT 860, [24]; West Dunbartonshire Council v William Thompson and Son (Dumbarton) Ltd 2015 CSIH 93; Gateway Assets Ltd v CV Panels Ltd [2018] CSOH 48, [66]). Th e pre-conditions attaching to the exercise of such a right are generally constr ued as conditions-precedent, which must be complie......