Holiday Fellowship Ltd v Hereford
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROMER,LORD JUSTICE ORMEROD |
| Judgment Date | 28 January 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0128-1 |
| Court | Court of Appeal |
| Date | 28 January 1959 |
In the Matter of a lease dated 31st December 1946 and made between the Right Honourable Charles Viscount Hereford and The Holiday Fellowship Limited
[1959] EWCA Civ J0128-1
The Master of the Rolls
(Lord Evershed),
Lord Justice Romer and
Lord Justice Ormerod.
In The Supreme Court of Judicature
Court of Appeal
Mr. M. O'CONNELL STRANDERS (instructed by Mr. Eric P. Hannay) appeared on behalf of the Appellants (Plaintiffs).
Mr. JOHN L. ARNOLD, Q.C. (instructed by Messrs. Nicholl, Manistry & Co.) appeared on behalf of the Respondent (Defendant).
: By a lease dated 31st December, 1946, the predecessor in title of the present Respondent granted a lease to the Appellants of certain premises at Tregoyd and Velindre in the County of Brecon, consisting of a messuage or dwelling-house and two cottages. The lease contains no covenant on either side as to painting. In clause 2 there are the tenant's obligations, which include, in sub-clause (3), the following: "To maintain and keep the demised buildings and the said fixtures and fittings therein (except the roofs and main walls of the said dwellinghouse.…)… in good repair and condition". Complementary to that, you find in clause 3 sub-clause (1) the landlord's covenant "To keep the main walls roofs" etc. "in good repair and condition"
The photograph which is before the Court shows the mansion house, "Tregoyd". It is a substantial building - indeed, a large building - and it contains, on two of its fronts, at any rate - those shown on the photograph - what might be described as bays, or similar structures, jutting out from the walls, in which are contained windows, in the ordinary sense of that term. It appears that a question has arisen (and I take this from the note of Mr. Justice Harman's Judgment), who is responsible for repair by way of painting of the wooden surrounds of the windows and the sashes.
It is conceded by the appellant-tenants that, except in so far as there is an obligation expressed to be upon the landlord, the tenant must undertake repairs. But what the tenants have contended is that, in the absence of any specific reference to painting, or indeed to windows, the obligation falls upon the landlord, on the ground that the windows are, and should be treated, for the purposes of this lease, as part of the main walls.
I wish to be a little careful in the meaning that I am attaching to the word "windows". I have described the bays or similar structures, which are, at any rate to judge from the photograph, made of the same material as the walls, in the ordinary sense of that term. We are not concerned with any question of repair to the "brick or stone structures containing the actual windows. For the purposes of this case and of the question raised in the originating summons, I take "windows" to mean, and to be confined to, the glass panels and the wooden framework and apparatus in which the glass is placed; and the question (as I have said) is whether, for the purposes of this document, "main walls" ought to be treated as including the wiudows as I have attempted to define them.
Now I must confess that, if I looked at this matter without any guidance (or possibly the reverse) from authority, I should unhesitatingly say, in ordinary language, that the windows as I have defined them are distinct from the walls. No doubt they are in the walls. Walls may have eyes as well as ears. But I would say that they are, as physical things, distinct from the walls in which they are inserted; and that was the view, plainly, of Mr. Justice Harman. Various illustrations from ordinary conversational usage have been cited; and I confess that to my mind it is plain that, apart (again) from the effect of any authority, the windows in the walls would be treated as something distinct from the walls themselves.
But it has been argued, with force, by Mr. Stranders, that certain authorities binding upon us, being authorities of this Court, put a different light upon the matter. The first case was that, decided in 1925, of Boswell v. Crucible Steel Company. The question in that case arose out of the obligation on the part of the tenant to repair "landlord's fixtures". It was said that, by virtue of that obligation he was bound to repair the windows, which had been broken - I gather by mischievous persons throwing stones through them. The premises were shop premises; and (as was pointed out in the Judgment of Lord Justice Bankes) far the greater part of what was called (and the phrase was taken from an earlier case that I will mention in a moment) the "skin" of the premises, consisted of the shop windows. In the county court it had been held that these shop windows were in truth "landlord's fixtures" and, therefore, within the express language of the tenant's covenants; and the Divisional Court affirmed that view. The learned Counsel for the appellant opened his argument thus: "These windows were not fixtures at all. They were part of the walls of the house"; and in the course of the argument he invoked the assistance of another decision of the Court of Appeal. Ball v. Plummer (only reported in "The Times" newspaper, I observe, of many years age), a case of an action by the tenant of a publichouse against his landlord for breach of covenant to do "outside repairs". This Court had held that in that case the "outside repairs" included window repairs, "the windows being part of the skin of the house".
Mr. Stranders did not, of course (as the learned Counsel in Boswell v. Crucible Steel Company did not), suggest that Ball v. Plummer governed either this case or Boswell v. Crucible Steel Company. The argument was and is that in so far as windows were part of the skin of the house then it was a step towards the point that they were part of the walls of the house, which were, so to speak, the "skin" in that sense. So this Court held, on the facts of that case, in Boswell v. Crucible Steel Company, that the windows could not be regarded as "landlord's fixtures" because in truth they were part of the structure of the building, and in that sense part of the skin of the house - of the walls of the house.
I cite from Lord Justice Scrutton, where he said".… it seems to me clear that that expression"-that is, "landlord's fixtures"-"cannot include a thing which forms part of the original structure of the building"; and so Lord Justice Atkin: "As these windows were part of the original structure representing the walls of the house, so that without them...
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