Killick v Second Covent Garden Property Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE STAMP,LORD JUSTICE CAIRNS |
| Judgment Date | 13 February 1973 |
| Neutral Citation | [1973] EWCA Civ J0213-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1973 |
[1973] EWCA Civ J0213-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Rogers - Mayor's and City of London Court)
Lord Justice Davies
Lord Justice Cairns and
Lord Justice Stamp
In the Matter of the LANDLORD AND TENANT ACT 1954 (section 53)
And In the Matter of a Lease and an Underlease of premises known as Nos. 31, 33 and 35 MANSELL STREET, ALDGATE, in the CITY OF LONDON:
Mr, CHRISTOPHER PRIDAY (instructed by Messrs. Paisner & Co.) appeared on behalf of the Appellants (Respondents).
Mr. GEORGE AVGHERINOS (instructed by Messrs. Coward Chance) appeared on behalf of the Respondents (Applicants).
(without calling upon Counsel for the Respondents)
I have asked Lord Justice Stamp to give the first judgment.
This is an appeal from an order of His Honour Judge Rogers, sitting at the Mayor's and City of London Court, on the 20th October, 1972, whereby it was declared that Second Covent Garden Property Co. Ltd. (whom I will call "the landlords") unreasonably withheld their consent to two assignments: one an assignment by Mr. Lawrence Edwin Killick (whom I will call "the lessee") of the lease, and the other an assignment by Herbert Fitch & Co. Ltd. (whom I will call "the underlessee") of the underlease, of premises known as Nos. 31, 33 and 35 Mansell Street, Aldgate, in the City of London. Each of the assignments or intended assignments is an assignment to a company called Primaplex Ltd.
The lessee holds the premises under a lease dated in April, 1951, for a term of 42 years from the 30th March, 1951. It is a valuable lease, and the landlords are entitled to the reversion expectant upon its determination.
The underlessee holds the premises under an underlease dated 20th September, 1957, for a term expiring a few days earlier than the head lease.
Clause 1 (7) of the head lease contains a covenant, which I will call "the user covenant", that the lessee "Will not carry on or permit to be carried on and that there shall not be carried on upon the premises hereby demised or any part thereof and that the same shall not be used as or for a public-house hotel inn tavern or beer-shop or for the sale of wine beer or spirits or as a club or for any noisy noxious noisome offensive disreputable dangerous or objectionable trade business or occupation whatsoever nor for any other purpose than the trade or business of a printer nor have"or permit any sale by auction in or upon the demised premises or any part thereof without the Lessors' written consent which shall not be unreasonably withheld".
Clause 1 (12) of the head lease contains a covenant that the lessee "Will not assign underlet or part with the possession of the premises hereby demised or any part thereof without the consent in writing of the Lessors first had and obtained but such consent shall not be unreasonably withheld".
The underlease contains covenants by the underlessee in similar terms to those I have recited, with modifications requiring that the necessary consents shall be those of the landlords as well as of the lessees.
The premises have been used by the underlessees for their trade or business of printers. It is, I think, common ground that, owing to the situation of the premises, in the City, and for reasons which I need not specify, that trade or business can no longer be profitably carried on there. Primaplex are not printers and propose to apply for planning permission to use the premises as offices and do the necessary works to convert them for that purpose. Both the lessee and the underlessee, being desirous of assigning their leases to Primaplex, applied to the landlords for their consent and, that consent not being forthcoming, they applied for and obtained the declaration contained in the order of Judge Rogers.
The ground upon which the landlords seek to justify the withholding of consent to the proposed assignments to Primaplex as being not unreasonable is simply that it will be a necessary consequence that there will be a breach of the user covenant. That part of the user covenant which precludes user of the premises for any purpose other than the trade or business of a printer is, so it is urged, an absolute covenant unqualified by the...
To continue reading
Request your trial
-
Ashworth Frazer Ltd v Gloucester City Council
...be given a broad, common sense meaning in this context as in others. 6 The Court of Appeal held itself to be precluded by Killick v Second Covent Garden Property Co Ltd [1973] 1 WLR 658 from holding on the facts of this case that the belief of the landlord, however reasonable, that the prop......
- Woolworth (FW) Plc v Charlwood Alliance Properties Ltd
-
Lymington Marina Ltd v Macnamara and Others
...that the proposed user would be in breach of covenant. The Court of Appeal, which was bound by its earlier decision in Killick v Second Covent Garden Property Co Ltd [1973] 1WLR 658, held that, while the proposed user would be a breach of covenant, the refusal of consent was unreasonable be......
- Law Land Company Ltd v Consumers' Association Ltd