Jacey Property Company Ltd v Miguel De Sousa and Paula Rosa Pereira De Sousa/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LADY JUSTICE ARDEN,LORD JUSTICE LAWS |
| Judgment Date | 28 February 2003 |
| Neutral Citation | [2003] EWCA Civ 510 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/02/2666 |
| Date | 28 February 2003 |
[2003] EWCA Civ 510
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE FYSH QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Laws
Lady Justice Arden
B2/02/2666
MR DANIEL GATTY (instructed by Messrs Pittalis & Co, London, N12 8NP) appeared on behalf of the Appellants
MR DUNCAN KYNOCH (instructed by Messrs W R Burrows & Son, Middlesex, HA3 0QB) appeared on behalf of the Respondents
I will ask Lady Justice Arden to give the first judgment.
This is an appeal by the defendants in this action against paragraphs 2 to 5 the order of His Honour Judge Fysh QC, sitting in the Central London County Court, dated 29 November 2002. By paragraphs 2 to 5 of his order, the judge ordered the appellant to pay the respondent the sum of £25,399.80 by way of mesne profits up to and including 29 December 2002 and continuing thereafter at a daily rate of £41.10. He gave judgment for the claimant in the sum of £5,928.63 being the aggregate of the sums which he held were due in respect of legal costs and repairs, together with interest at the rate specified in the lease. By his order the judge also ordered that the appellants give possession of the property, the subject of the lease, namely the ground floor lock up at 302 Wellworth Road, London SE17 ("the property"). The judge also dismissed the appellants' counterclaim.
The action was brought by the respondent as landlord of the property. The respondent sought possession on the basis that the appellants' user of the property was unauthorised, that they had failed to pay a sum due in respect of repairs to drains of the property and were liable for legal fees and interest, and that they were also liable for the arrears of rent of £15,000.
The lease of the property was executed on 16 May 1997. User is restricted to use as a shop for the appellants' business as a patisserie or such other use within class A1 of the Town and Country Planning (Use Classes) Order 1987, for which the landlord shall give consent not to be unreasonably withheld or delayed. The appellants accept that their particular user of the patisserie was in breach of this clause from about mid-1998, from which date they used the property for the sale of hot and cold food to be eaten both on and off the premises. This was food which had been prepared on the premises as opposed to food which had been brought in for re-heating on the premises.
The appellants' case was that the respondent was estopped from complaining about the authorised user, alternatively that there was a collateral agreement that the property would be used as a restaurant of this kind. The judge found against the appellants on both those issues. The issue on appeal arising out of the user of the property was whether the judge was wrong to reject the appellants' case that the respondent had waived the user clause in so far as it precluded the appellant from serving and preparing hot and cold food. It is necessary that I should set out the judge's findings in relation to that matter and in relation to other matters with which he dealt.
The judge heard evidence from six witnesses: Mr Jack Cornbloom, who represented the respondent landlord; Mr Alfred Pearce; Mr Eric Dunning; the second appellant, Mrs De Sousa; her neighbour, Mrs Barbara Cradduck and Mr Chris Faulkner. The judge found that Mr Jack Cornbloom was a satisfactory witness "but only just so". He found that the second appellant, Mrs De Sousa, was not a reliable witness. He held that the other witnesses were satisfactory and, in relation to Mr Pearce, he expressed the view that he was a very fair witness whose word could be relied upon. In relation to his assessment of Mrs Cradduck's evidence, the judge also commented that her evidence as to what was on sale at the property has now become rather unimportant.
The judge found the following facts. By mid-1998 the appellants were offering hot and cold food to be eaten both on and off the premises. That food was prepared on the premises. By the summer of 1998 and unknown to Mr Cornbloom, the second appellant had installed an impressive commercial cooking range in the kitchen at the rear of the premises for the preparation of food on the premises both for re-heating and hot from the oven. Such food included not only lasagne, pastas and risottos etc, which had been previously brought in, but also cooked breakfasts. There was a drain from the kitchen sink which ran out in the external drain opening in the outdoor back area of the property. The respondent's case was that the cooking gave rise to grease which caused blockages in the drains.
The judge held that the in-house cooking facilities would have been invisible, or at best only partially visible, to customers in the public part of the premises and even to those making use of the lavatory facilities at the rear of the premises. The respondent made frequent visits to the property. The appellants' evidence was, therefore, that he was fully aware of the numerous breaches of the user conditions in the lease and he did nothing, even though he knew of the unapproved and unenhanced catering facilities that had been undertaken by them at the relevant time. It is said that he stood by watching the appellants build up their business.
The judge held that the respondent's evidence, particularly that of Mr Cornbloom, regarding ignorance or innocence of what was going on in the public parts of the patisserie was "implausible". He held that it was there to be seen and, in addition, there were signboards offering hot foods of various kinds. He held that it was just possible that Mr Dunning, the respondent's agent, did not notice. However, the judge accepted that, although Mr Cornbloom visited the lavatory during his visit, he did not notice the in-house cooking facilities to the rear. The judge therefore accepted Mr Cornbloom's evidence on this point. He further accepted that Mr Cornbloom only fully appreciated what the appellants were doing at the cafe in January 2000. He held that on the evidence there was no question of Mr Cornbloom having sanctioned the on-site cooking facilities, whatever else he may have turned a blind eye to. In the judge's judgment that was the end of the estoppel issue.
There were also issues before the judge concerning the malfunction of the common drains. The judge held that from December 1999 the drains under the patisserie had given repeated and serious trouble because of blockages. The respondent attempted to deal with them. Its case was that, under the terms of the lease, the appellant should pay a proportion of what the respondent spent on trying to rectify the drains.
The lease provided that the tenant agreed:
"To pay a proper and fair proportion as determined by the Landlords surveyor of the expense of repairing renewing and rebuilding….
(iii) …sewers and drains…
And the amount of any such proportion when ascertained as aforesaid shall become payable by the Tenant to the Landlord … within 14 days."
The lease further provided that:
"The Landlord will maintain and repair the remainder of the Building and the nearby premises so as to provide support and shelter for the demised premises."
The lease also conferred on the tenant the right to use in common with the landlord and all other persons having the like right:
"…the common drains and sewers … situate under the rear service area."
By clause 3 the landlord had the right to enter on the property in order to:
"…construct … cleanse … inspect … replace … sewers drains … causing as little inconvenience or disturbance as possible and making good all damage caused to the demised premises."
The landlord claimed a proportion of the works done to the drains pursuant to clause 3(iii) of the lease. There is no dispute as to the manner of apportionment, nor is it said that the building costs were unreasonable. The only point taken by the appellants was that the determination was performed by the respondent's solicitor acting in a surveying role and not by the landlord's surveyor as stipulated in the lease. The judge held that that was factually correct. However, he rejected the appellants' case that that relieved them of responsibility for paying for any sum under this part of the claim since precisely such determination was a condition precedent to liability.
The judge gave the lease what he held to be a purposive construction. He said that in his judgment the phrase should be construed as meaning:
"an appropriately skilled person appointed by the landlord to act as a surveyor for this purpose".
No qualification was specified for the surveyor and he accepted the submission that a departure from the literal wording of the clause could be condoned if circumstances warranted it. He relied on the passage from judgment of Mr David Blunt QC in Scottish Mutual v Jardine (unreported 12 March 1999). As regards legal fees and interest, it was common ground that the legal fees were not unreasonable. The judge held they were payable with interest at the rate provided for in the lease in the light of his findings.
The judge then turned to the appellants' counterclaim. There were allegations of six breaches of the repair obligations and a list of eight items of remedial work which the appellants contended had to be undertaken and in respect of which they sought a mandatory injunction.
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