Kanda v Church Commissioners for England
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS,LORD JUSTICE PEARCE |
| Judgment Date | 05 July 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0705-2 |
| Court | Court of Appeal |
| Date | 05 July 1957 |
[1957] EWCA Civ J0705-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Morris
And Lord Justice Pearce.
MR. MAURICE SHARE, instructed by Messrs, Scott Winter & Co., appeared for the Appellant (Second Defendant).
MR, BERNARD R. BRAITHWAITE, instructed by Messrs, Trower, Still & Keeling, appeared for the Respondents (Plaintiffs).
The Church Commissioners for England are the owners of the freehold reversion of premises known as 21,Shirland Road, Paddington. There is an outstanding lease of those premises which was granted on the 10th June, 1868. The lease was for a term of 97 ¾ years from the 25th March, 1868. The yaerly rental waa 9 She , who, was one Kelload, covenanted to feep the property in repair and to do cartain work of decoration. The lease contained a provise for reentry in the event of default being made in too performance of the covenants. At some unascertained date prior to January, 1956, the term of years granted by the lease become vested in Mr.S. Kandna as assignce.
It is alleged by the Church Commissieners that in January, 1956, the premises were out of repair in such manner as to constitute a breach of covenant. A Schedule of wants of Repair was served upon Mr. Kenda on the 2nd February, 1956, On the some date a notice under Section 146 of the Law of Property Act, 1925, was carved upon Mr. Kanda by the Agents of the Church Commissioners. She notice was addressed "s. Kenda, 21, Shirland Head, London, W.9. or other the person persons or coapany the lessee or lessee for the time being of the premises known as 21, Shirland Road, paddington, London (herein after referred to as 'the said premises') and to all other persons whom it may concern." the notice recited that there had been and were breaches of the covenants in the lease, that the particular breaches comlained of were comprised in the particulars specified in the Schedule of Wants of Repair union was annexed: it required the branches of covenant to be remedied, and the works of repair and amendment to be carried out is accordance with the Schedules. The notice farther contained the following words: "She lessee is entitled trader the Leasehold Property (Repairs) Act, 1938, as to serve upon the Commissoners a counter notice claiming the benefit of the said Act, Such notice say be served upon the said commisioners at the office mentioned below at any time days from the date of service hereof". At the same time the agants to the Church Commissioners wrote a letter to Mr. Kanda in the following terms: "we enclose a statutory notice under saotlon 146 of the Law of preparty Act, 1925, and we would to obliged If you would return the duplicate notice duly receipted. we are prepared to advice the Chaurch Commissioner to allow two month as a reasonable time for compliances with the Schedule., ccomliance weith this Schedule within the time mentioned, m which will expire on the 2nd April, 1956 We shall have no course but to advise the Church Commissioners to take the necessary ".
On the 15th February, 1956, Mr. Kanda wrote a letter to the agants to the Church Commissioners in the following terms " Re 21 Shirland Road, w.9. with reference to your letter referring to some repairs of above quoted house I stats hereby that during the winter time such a repair cannot to done and I clain also the benefit of the Leasehold Property (Repairs) Act, 1938."
In spite of the intimation contained in the letter form the agents in reference to the period of two months which would expire on the 2nd April, 1956, no work of repair appears to have been done by Mr. Kanda and no action appears to have been taken by the plaintiffs. Towards the end of the year, however, steps wore taken to obtain the leave of the court to take proceedings. On the 4th December, 1956, an affidavit was sworn by Mr Guest who is employed as a building surveyor by the firm of surveyors and valuers who act as the agents for the church Commissioners. Mr. Guest deposed that he had made an inspection of the premises on 25th January, 1956 and that the Schedule of wants of Repair had been by his so as to set out the repair wehich he considered should be carried out in order to comply weith the covenants in the lease. In paragraph (4) of his affidavit he stateds "That I the cost ofcarrying out the aid repairs to be in excess of 500. That, in my opinion, the value of the revarsion to the said lease has been substanislly diminished by the said wents of repair and the remedying of the said wantsofrepair is riquisite for ferther substantial disimation in the vale of the said reversion. If the said wants of repair are not remdied within a short period of time will be suffered by the of the said premissand I have fermed the opinion that the said wants of repair can be immediately at an expenss that is relatively small in comparisen with the much greater expenss that would probably be occasioned by postpenement of the nnessessry work."
MR. Guest further deposed that he had inspected the premises on the 21st November 1956 andthat name of the said whats of repair set out in the Scdedule had been remadid. On the 14th January, 1957, an applisation by way of origination sumons was made to Mr Justice pearse (as he then was), as judge in chembars, by the plaintiffs ofr leave to preceeding against Mr. Kanda . Mr Kanda was the respondent to the application. An ordar was made in the following terms; "Upen hearing counsel fer the applicant and for the respondent and uupon reading the affidavit of albart Edwin Guest filed herein it is ordered that the applicants do have leave to commancs proceedings against S. Kanda (male) to enforcs their right of re –entry and to damages for breaches of covenent ot repair premises known as No.21 Shirland Road, Paddington, in the County of London, contained in a lease dated the 10th June, 1868, and that the applicent do have the benefit of Section 146, sub Section (3), of the Law of proparty Act, 1925. Costs of this application to be the applicant's and to be taxed and paid by the respondent. Fit for counsel.'
At that date, however, it appears that Mrt kanda was in the course of disposing of this interest in the property. In a letter dated 11th January, 1957. From the solicitors for the Church Commissioners to the solieitors for Mr. Kanda, it was said that the writers had been informed that Mr. Kanda was in the course of dispesing of his interest in the property and that had been fixed for Monday, the 14th January. Attention was salled to the fact that proceedings were pending against Mr, Kanda with a view to obtaining forfeiture of the lease, In a letter dated the 16th January, 1957, from the solieltore for Mr. Kanda to the solicitors to the plaintiffs it was stated: "Both Mr. kanda and the now purchaser, Mr. T. A. St, Clair Bridgwater, called on us on Monday last and not-withstanding the position the purchaser wishes to proceed. we gather that the purchaser is arranging to put in hand the neeeeaary works to be done to the property as quickly as possible and will no doubt be writing to you as to this himself shortly."
Mr.kanda assigned the lease to Mr. Bridgwater for the sum of 300. He permission to assign was in this case necessary. She Deed of Transfer appeare to have been on or about the 14th or 15th January, 1957.
Pursuant to the leave granted by the Order of the 14th January a writ was issued on the 28th of January, 1957, against "S Kanda (Male)." By the Statement of claim which was endorasd on thewrit the relevant facts were recited and the claim was for pessession of the premises, for damages for breaeh of covenant, and for case by way of rent and seane profits
On the 27th February, 1957, formal leave to amend by Joining Mr. Bridgwater was obtained from Master Grundy, but there was no application to the learned judge for leave pursuant to the Act of 1938. By the attended statement of Claim on the writ the claim for possession as against Mr kanda was dropped and possession was claimed against Mr. Bridgwater together with damages for breach of covenant, and together with certain claims for rent and means profits. The aminded writ was served on Mr. Bridgwater on the 14th March. He failed to enter an appearance and the plaintiffs obtained Judgment in default of appearance. It me adjudged that the plaintiffs recover possession of the premises, a sum of 7s, 5d as arrears fo rent, a sum fo 1, 8s. 7d. by way of means profits from the 28th January, further means profits from the date of Judgment to the date of possession and danages for breach of covenast to to assessed. that Judgment was obtained on the 27th March.
Mr. Bridgwater than applied to have the Judgement set aside. By an affidavit even on the 4th April he stated that the reason why he had not appeared was that he had been in this country only two years and that he is an an engineering student, aged twenty-one years, from tha west Indies, and that he did not understand tha legal position arising as a result of the Writ. He addmitted that when he took the assigment he had been handed a document which was a list of the repairs which were required to bo carried out to the premiess. His reasons for not entering an appearanse do not seem to me to be very He was taking an assignment with knowledge of the Schedule of wants of he had asked Mr, Kanda's solieltere to act for him at the time of the assignment, and it seems surprising that he did not take legal advice when he was served with tha Writ. In his affidavit he stated as follows: "On the 30th day of March 1957, I instructed Mr. H.G. Cane, a builder, of 26, methwold road north Kensington, to inspect the premises, No. 21, Shirland Road, and far this purpose I handed to him 'A.S.B.2'" (which was the list of repairs) "and as a...
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