JANET REGER INTERNATIONAL Ltd v TIREE Ltd
| Jurisdiction | England & Wales |
| Judge | . |
| Judgment Date | 17 July 2006 |
| Neutral Citation | [2006] EWHC 1743 (Ch) |
| Docket Number | Claim No HC05C03877 |
| Court | Chancery Division |
| Date | 17 July 2006 |
[2006] EWHC 1743 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Terence Mowschenson Q.C Sitting as a Deputy High Court Judge
Claim No HC05C03877
Steven Thompson (instructed by Suttons for the Claimant)
Stephen Jourdan (instructed by Dewar Hogan for the Defendant)
This is the official judgment of the court and I direct that no further note or transcript be made.
In this action Janet Reger International Limited ("the Claimant" or "the Tenant") seeks an order against its landlord, Tiree Limited ("the Defendant" or "the Landlord") for specific performance of, and damages for breaching, a covenant to repair contained in a lease ("the lease") made on 27 th February 2001 relating to the basement and ground floor at Number 2 Beauchamp Place, London., SW3 ("the Demised Premises"). The Defendant counterclaims for unpaid rent (together with interest thereon) which the Claimant has withheld in the course of the dispute with the Defendant.
The principal issue in the action is whether the Defendant is in breach of an obligation contained in clause 5.3.2 of the lease to exercise reasonable endeavours under a covenant to "maintain, repair and renew" the Structure to carry out works which were required to prevent damp entering into the basement area of the Demised Premises.
The lease.
I shall set out certain of the provisions in the lease below; others are referred to where they are relevant in the judgment to other issues, some of which only arose in the course of the trial. In the lease the Claimant was referred as "the Tenant" and the Defendant as "the Landlord".
The term of the lease is 20 years from 8 th June 2000 at a rent of £60,000 per annum. The Demised Premises are the basement and ground floor premises at No 2 Beauchamp Place. The Permitted User is any use within Class A1 of the Town and Country Planning (Use Classes) Order 1987 (as may be approved by the landlord in writing) except Class A1 (f) (h) and (i).
Clause 1.1 of the lease provides various definitions:
"the Building" means numbers 2, 3, 4, and 5 Beauchamp Place, London, SW3 of which the Demised Premises form part: Cl. 1.1 (b).
"Demised Premises" is defined as including
(a) the plasterwork and decorative finishes applied to the internal surfaces of the external and load-bearing walls and columns of the Building but not any other part of the external or load bearing walls and columns
(b) the floor finishes the raised floor and its supports and the void beneath the raised floor so that the lower limit of the Demised Premises includes such finishes raised floor supports and void but does not extend to anything below them: Cl.1.1 (d)
"Retained Parts" includes "the Structure": Cl.1.1 (o)
"Structure" includes:
(i) the entirety of the roofs and foundations of the Building;
(ii) the entirety of all floors and ceilings of the Building but excluding the floor finishes the raised floors and their supports and the void beneath the raised floors … ;
(iii) the entirety of all external walls of the Building but excluding the plasterwork and decorative finishes applied to the internal faces of such walls;
(iv) the entirety of all load-bearing walls pillars and other structures of the Building but excluding the plasterwork and decorative finishes applied to the faces of such walls pillars and other structures;
(v) …
(vi) all other parts of the structure of the Building not referred to on the preceding paragraphs (a) to (e): Cl 1.1 (q).
The covenants assumed by the Claimant included covenants:
to pay the yearly and other rents reserved in the lease without any deduction or set off whether legal or equitable or otherwise: Cl 4.1
to repair and put and keep the whole of the Demised Premises … in good and substantial repair and condition and to yield up the same at the expiration or sooner determination of the Term in good and substantial repair and condition in accordance with the covenants by the Tenant herein contained (damage by any Insured Risk excepted save to the extent that payment of the insurance monies shall be withheld in whole or in part by reason solely or in part of any act or default of the tenant . .): Cl.4.3
to pay to the Landlord without any deduction set off or counterclaim by way of further rent on demand or if required by the Landlord on account at the time and in the manner set out Part II of Schedule 5 a fair and reasonable and proper proportion of the aggregate costs expenses and fees properly expended or incurred by the Landlord for or in connection with or relating to the provision of services to the Building and other heads of expenditure as the same are set out in Part 1 of schedule 5 (whether the Landlord be obliged . . to incur such expenditure or not) … : Cl 4.6.1… Paragraphs 1 and 2 of Part 1 of Schedule 5 provide
All costs and expenses whatsoever incurred by the Landlord in and about the discharge of the obligations on the part of the Landlord set out in clause 5.3…
Maintaining, repairing amending altering rebuilding renewing reinstating the Retained Parts.
The Landlord's covenants included:
An obligation, subject to the Tenant's compliance with clause 4.6 to use reasonable endeavours to maintain repair and renew the Structure … : Cl.5.3.2.
Witnesses
During the course of the action I heard evidence from the following witnesses:
On behalf of the Claimant:
Miss Aliza Reger (sometimes called Mrs Aliza Reger-Claremont) a director of the Claimant and the wife of Mr Claremont.
Mr Claremont the Company Secretary of the Claimant.
Mr Peter Harris FRICS a construction dispute consultant and expert witness for the Claimant.
On behalf of the Defendant:
Miss Natalie Shulman a property manager with Pearl and Coutts Limited ("Pearl and Coutts")
Mr Trevor Langley a property manager with Pearl and Coutts
Mr Hedley Merriman FRICS and a director of Pater Goodman Merriman, surveyors, expert witness for the Defendant.
The Background.
The Claimant trades in the design, production and sale of upmarket lingerie and nightwear under the label "Janet Reger". It is a highly respected brand within its industry. The business was founded by Janet Reger the mother of Miss Aliza Reger.
The business of Janet Reger has traded from premises at 2 Beauchamp Place for some 30 years. In 1997 the freeholds of numbers 2 to 10 Beauchamp Place were sold and redeveloped by new owners (Millbank Property Fund Limited and Pearson Nominees Limited). In order to allow the redevelopment to be carried out the Claimant moved its business to Number 10 Beauchamp Place temporarily and then moved back into Number 2 Beauchamp Place which was enlarged at the rear of the basement during the course of the development. Prior to the redevelopment the Claimant occupied the entirety of the building, but after the redevelopment, it occupied the basement and ground floor only.
During the course of the construction works the buildings at Numbers 2 and 3 Beauchamp Place collapsed into the street. This caused considerable delay to the reconstruction and the Claimant eventually moved back into the building on 8 th June 2000.
The basement and ground floor areas are arranged as follow. The ground floor is used for retail display and sale and includes a changing and stock room. The basement, which one can only enter through the shop, comprises a showroom at the back for wholesale sales at the rear of the building and open plan offices at the front. The rear room is higher than the front room and there is a staircase between the two. The basement also contains a small kitchenette and lavatory serving both the basement and ground floor. This is located between the rear and front rooms of the basement. The basement also has a storage vault under the pavement at the front of the building.
On 28 th August 2002 the freeholds of numbers 2 to 10 Beauchamp Place were acquired by Cosmichome Ltd which is in the same group of companies as the current landlord, the Defendant, which acquired the freeholds on 6 th May 2003.
The Defendant's managing agent is Pearl and Coutts which is ultimately owned by the same person as the Defendant.
At the beginning of July 2003 the basement of Demised Premises began to show signs of dampness. The wall between Numbers 2 and 3 Beauchamp Place showed signs of damp at a low level, paintwork started to blister and the Amtico floor covering started to lift in a number of areas. To the side of the the internal stairs leading to the showroom, kitchenette and lavatory the plaster and paintwork blistered and showed signs of dampness and one of the wooden treads on the stairs split. The matter was reported to Pearl and Coutts; by the end of July 2003 the damp had got worse and by August the condition of the basement had worsened appreciably with signs of damp showing throughout the basement.
By August the Claimant was considering relocating the offices and showroom and possibly the shop. The Amtico floor was lifting in various places and was likely to, as it did, cause someone walking over it to trip up. The air was damp and there was fungal growth on the walls. Mr Claremont became concerned for the welfare of his employees and the Claimant's potential liability to its employees under health and safety regulations. In addition the basement was becoming an unattractive place for clients to go into, whether clients of the wholesale business or the retail shop. Customers of the shop who wished to use the lavatory had to go downstairs and the appearance was unsightly and not up to the standard of what one might expect in a shop in one of London's premier shopping streets.
The damp in the basement also caused problems in the shop. The smell permeated into...
To continue reading
Request your trial
-
LVT/0047/10/13: Monmouth House, Cwmbran
...putting right a design defect that has led to the damage”, (per Mr T Mowschenson QC in Janet Reger International Ltd -vTiree Ltd [2006] EWHC 1743 Ch). Work to roofs has generally been regarded as repair even though substantial areas of the roof covering may be replaced. In Postel Properties......