Jaquin v Holland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DEVLIN,MR JUSTICE GORMAN |
| Judgment Date | 20 January 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0120-2 |
| Court | Court of Appeal |
| Date | 20 January 1960 |
[1960] EWCA Civ J0120-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Devlin and
Mr Justice Gorman
MR JOHN DRINKWATER (instructed by Messrs Neve, Beck & Co., agents for Messrs W.H. House & Son, Sevenoaks) appeared as Counsel on behalf of the Appellant (Defendant).
MR JOHN GOWER (instructed by Messrs Vallis & Struthers, Sevenoaks) appeared as Counsel on behalf of the Respondent (Plaintiff).
This is an appeal from a Judgment of His Honour Judge Glazebrook given at Sevenoaks on the 6th July, 1959. The case arises in these circumstances. The Plaintiff in the action is the owner of a bungalow, No. 49 Oakdene Road, Sevenoaks, which she had let on a tenancy agreement for a period of one year for the sum of £265 to the Defendant.
The agreement was dated the 18th March, 1958, and the only terms in the agreement with which we are concerned are the terms relating to the repair of the premises. Perhaps at this early stage it would be well to read the paragraphs in question. By paragraph 4 of the agreement, the tenant agreed with the landlord (sub-paragraph (c)) "To keep the interior of the said premises and all blinds windows shutters doors locks fastenings bells and other fixtures fittings and conveniences now belonging thereto in good and tenantable repair (damage by accidental fire storm or tempest excepted) and to cultivate the garden in a proper manner". Sub-paragraph (k) reads as follows: "To yield up the said premises at the end of the tenancy with all additions (if any) thereto and fixtures thereof except tenant's fixtures in good and tenantable repair (except as aforesaid)".
The tenant, the Defendant in this action, entered into occupation of the bungalow on the terms of the agreement, but, at the end of eight months of his tenancy, he wished to vacate the premises. There was some correspondence with the landlord or the landlord's solicitors on that matter, and the result was that the tenant was allowed to give up his tenancy, the landlord having found another tenant who was willing to take over the premises. The tenant vacated the premises, I think, on the 28th November.
After the premises were vacated, the surveyor appointed on behalf of the landlord inspected the premises, a Mr Coles, and made a schedule of dilapidations which has been before the Court. The only matter that I need mention with regard to that schedule is that the total sum came to £102. 16s. 0d. The tenant employed a Mr Platts as surveyor, and he inspected the premises. He also prepared a schedule of dilapidations. The two surveyors attempted to agree the amount of dilapidations, but were unable to do so, with the result that these proceedings were commenced by the landlord against the tenant for damages arising from the tenant's breach of the covenant to repair.
The matter came before the learned County Court Judge, and, by agreement, it was remitted by him to the Registrar of the County Court. The parties appeared before the Registrar of the County Court, who heard the matter and delivered a careful Judgment which showed that he had given full consideration to the various matters in question. I should say that the hearing before the Registrar occupied two days. On one day he heard the evidence which was called by the parties (the evidence being that of the Plaintiff and Mr Coles, the landlord's surveyor, on the one hand, and of Mr Platts, the tenant's surveyor, on the other hand) and then, on a subsequent day, the Registrar beard legal submissions from the parties and the matter was thoroughly investigated by him. As the result of this hearing, he came to the conclusion that the Defendant had been in breach of his covenant and that the proper sum to award in damages was the sum of £29. 10s. 0d., which was the sum of £19. 10s. 0d. for repairs to the house and £10 (a sum which is not in issue now), being the amount which was required to put the garden into proper order after the Defendant's neglect of it.
The landlord not being satisfied with the finding of the Registrar, appealed to the County Court Judge, as he had power to do under Order 37 Rule 5, of the County Court Rules. The matter thereupon came before the County Court Judge for argument, and the County Court Judge considered it, and he varied the finding of the Registrar and found that the sum to which the landlord was entitled was the sum of £60, being £50 in respect of damages for breach of covenant for non-repair of the house and this sum of £10 for the garden. It is against that decision of the County Court Judge that the tenant appeals today.
I need only refer to the Pleadings, I think, to say that the Particulars of Claim was a claim for damages for breach of the covenant to repair, and the particulars which were given were the particulars set out in the schedule of dilapidations which was attached to the Particulars of Claim. The defence was a denial that there was a breach of covenant, but that, if there was, the schedule was unreasonable and the cost of doing the work required was excessive. Further, the Defendant pleaded section 18 of the Landlord and Tenant Act. 1927, and it might be well at this stage to refer to the provisions of that section. Section 18, subsection 1, of the Landlord and Tenant Act, 1927, provides as follows: "damages for a breach of a covenant or agreement to keep or put premises in repair during the currency of a lease, or to leave or put premises in repair at the termination of a lease, whether such covenant or agreement is expressed or implied, and whether general or specific, shall in no case exceed the amount (if any) by which the value of the reversion (whether immediate or not) in the premises is diminished owing to the breach of such covenant or agreement as aforesaid". The second part of the subsection is not, I think, material to the issues in this case. The effect of that provision, shortly, appears to be that, whatever may be found to be the cost of doing the repairs rendered necessary by the failure of the tenant to observe his covenant for repair, the damages which the landlord is entitled to recover shall be limited to the diminution in the value of the reversion of the premises.
When the matter came before the Registrar, as I say, the evidence which was called, apart from the evidence of the Plaintiff herself, was the evidence of the two surveyors, and, according to the findings of the Registrar, set out in his Judgment, the evidence of Mr Coles (the surveyor called on behalf of the landlord) was that there was a want of repair which would cost £102. 16s. 0d. to put right. According to the Judgment, Mr Coles said that he prepared his schedule on what he regarded as proper grounds, that is on the footing that the premises be put into good and tenantable repair on his understanding of the covenant, and he said that he had put into the schedule every possible defect, and that in his view that was a correct interpretation of the covenant. Then the note of his evidence goes on: "He also said that with regard to selling the property he would not advise any abatement in the asking price in view of the condition of the house but he might so advise during negotiations for a sale. He also said that the property was lettable in the condition it was left because the demand was so high". This was the Registrar's summary of the evidence of Mr Coles on these matters. The evidence of Mr Platts, according to the Registrar, was that in Mr Platts' view no damages at all were payable by the tenant in respect of want of repair, because there had been no diminution in the value of the freehold reversion. According to the Registrar, Mr Platts came to that conclusion for two reasons: first, that the items of non-repair were trivial in themselves, and therefore not likely to affect the value, and secondly that the demand for houses was so great in Sevenoaks that these matters were not likely to affect any price which might be procured for the sale of the house. But, according to the Registrar again, Mr Platts agreed that, if damages were to be paid, and if there had been liability on the tenant for these various items of non-repair, there were a number of items for which he would be liable, and those items are set out in the Registrar's Judgment by number in reference to the schedule of dilapidations. According to the Registrar, the total of those items is £91. 13s. 6d. Mr Drinkwater, on instructions, has submitted that that figure of £91. 13s. 6d. is not the correct figure and that there is no evidence to justify it. But, whatever the figure was, it was certainly a substantial figure which may or may not have been as much as the Registrar calculated it to be, £91. 13s. 6d, In effect, according to the Registrar, what Mr Platts was saying was: "Here no damages should be paid because there has been no diminution in the value of the reversion of the property. But, if I am wrong about that, and there has been diminution, then the amount of items for which I am responsible, I admit, are the items set out by the Registrar" — which, according to the Registrar, amount to £91. 13s. 6d. That is the evidence of the two surveyors.
In addition, the landlord herself had said that she had spent the sum of £25. 11s. 2d. (which is, as a matter of fact, a wrong figure; the correct figure is £19. 10s. 0d.) on work on the house to put the house in what she called "presentable" condition, and that, after that, she had let the house in that condition for the same rent to the new tenant.
That is how the matter stood when the learned Registrar had to consider his findings. He appears to have directed himself correctly on the rule he had to consider as to whether or not there had been a breach of the covenant in this case. That was the first matter to which he had to direct...
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