Lucie Marie-Antoinette Campbell v Daejan Properties Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Lloyd,Lord Justice Laws |
| Judgment Date | 20 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1503 |
| Docket Number | Case No: A3/2011/3136 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2012 |
[2012] EWCA Civ 1503
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE ROTH
HC10C01982
Royal Courts of Justice
Strand. London. WC2A 2LL
Lord Justice Laws
Lord Justice Lloyd
and
Lord Justice Jackson
Case No: A3/2011/3136
Mr. John Male QC (instructed by Dewar Hogan Solicitors) for the Appellant
Mr. Gary Cowen (instructed by Hammond Bale) for the Respondent
Hearing date: 15th October 2012
This judgment is in seven parts, namely;
Part 1. Introduction,
Part 2. The Facts,
Part 3. The Present Proceedings,
Part 4. The Appeal to the Court of Appeal,
Part 5. The Law,
Part 6. The Construction Issue,
Part 7. Conclusion.
The issue in this appeal is whether one clause of a lease contains an obvious error, which the court should correct as a matter of construction. The lessor contends that it does. Mr. Justice Roth ("the judge") accepted that contention and granted a declaration to that effect. The lessee now appeals against that decision.
The lessor is Daejan Properties Limited, to whom I shall refer as "Daejan". Daejan was claimant in the court below and is respondent in this appeal. The lessee is Mrs. Lucie Marie-Antoinette Campbell, to whom I shall refer as "Mrs. Campbell". Mrs. Campbell was defendant in the court below and is the appellant in this court. The clause which is in issue governs the extent of the lessor's repairing obligation and the extent of the lessee's obligation to contribute to the cost of those repairs.
I shall refer to the Landlord and Tenant Act 1987 as "the 1987 Act". Section 35 of the 1987 Act enables any party to a long lease of a flat to apply for an order varying the terms of the lease. One possible ground of such an application is that the lease fails to make proper provision for the computation of a service charge: see section 35 (2) (f).
I shall refer to the Leasehold Reform, Housing and Urban Development Act 1993 as "the 1993 Act". The 1993 Act enables the tenant of a flat under a long lease to acquire a new lease. Section 57 of the 1993 Act makes provision in respect of the terms of that new lease. Section 57 (6) provides:
"Subsections (1) to (5) shall have effect subject to any agreement between the landlord and tenant as to the terms of the new lease or any agreement collateral thereto; and either of them may require that for the purposes of the new lease any term of the existing lease shall be excluded or modified in so far as—
(a) it is necessary to do so in order to remedy a defect in the existing lease;"
After these introductory remarks, I must now turn to the facts.
The house which stands at 2 Upper Wimpole Street, London, W1 was built in the late eighteenth century in traditional Georgian style. It forms part of the Howard de Walden Estate. The house comprises a basement, a ground floor and four upper floors. Over the years the property has been extended to the rear at basement and ground floor levels. There are three separate flat roofs over these extensions. Above the main part of the property there is a pitched roof. The water tanks which serve the property as a whole sit within the pitched roof.
On 16 th April 1934 Baron Howard de Walden and General Real Estates Investment and Trust Limited granted a 999 year lease of the property to Mr. Lionel Colledge. I shall refer to this lease as "the head lease".
Clause II (2) of the head lease provided:
"That the said Lessee will from time to time during the said term when and as often as need shall require well and substantially cleanse repair support and uphold and from time to time when necessary rebuild to the satisfaction of the Lessor all present and future buildings upon the said premises and all pavements sinks sewers drains pipes pumps party and other walls and vaults and all erections and improvements erected or made or to be erected or made upon the said premises …"
London W1 is an area where numerous medical practitioners have their consulting rooms. Thus many buildings there, which were formerly private houses, are now in multiple occupation. Such is the case with 2 Upper Wimpole Street. The ground and first floors of that property were converted into doctors' waiting rooms with attendant facilities. The second floor was converted into a flat. The third and fourth floors were converted into a maisonette. Unfortunately the basement became derelict and uninhabited.
By 1958 the leasehold interest under the head lease was vested in Mr. George Isidor Stem. On 7 th November 1958 Mr. Stem granted a lease of the third and fourth floor maisonette to Mr and Mrs. Herman Hardenberg for a term of 65 years commencing on 29 th September 1958. I shall refer to this lease as "the 1958 lease" or "the lease".
The 1958 lease included the following terms:
"2. The Lessees HEREBY jointly and severally COVENANT with the Lessor as follows:
(iii) To pay and discharge all rates taxes duties assessments charges and outgoings whatsoever whether parliamentary parochial or of any other description which now are or during the term hereby granted shall be imposed or charged on the premises or the Lessor or the Lessees or occupier in respect thereof except as aforesaid PROVIDED ALWAYS that until such time as the premises shall be separately assessed for general and water rates the Lessees shall pay to the Lessor by way of further rent Five-sixteenths of the amount of general and water rates payable in respect of the house such amount to be paid with the rent for the quarter immediately following the receipt by the Lessor or the demand for the said general water rates PROVIDED that the Lessor shall if the Lessees so require exercise any option given by the Rating authorities of paying the said rates half yearly or quarterly unless by so doing discount would be lost
(iv) From time to time during the said term to pay all charges and expenses incurred by the Lessor in abating any nuisance emanating exclusively from the premises and a rateable or due proportion of any charges and expenses of abating any nuisance emanating partly from the premises and partly from the rest of the house and all such works which may be necessary for abating such nuisance in obedience to any notice served by any competent authority
(vii) To bear and pay and indemnify the Lessor against all the costs and expenses which he in respect of being the owner or head-lessee of the premises or any part thereof during the continuance of the said term ought or would be liable to bear pay or contribute in or about every or any reparation pulling down rebuilding or raising of every or any party wall party fence wall timber partition or party arch or incidental thereto or in or about any drainage or sewerage or otherwise by virtue of any Act or Acts of Parliament already made or hereafter to be made or of any direction or requirement by any local or public authority in pursuance of any such Act or Acts
(viii) At all times during the said term to pay and contribute a rateable or due proportion of the expense of making repairing maintaining painting supporting rebuilding and cleansing of all sewers drains pipes watercourses water pipes cisterns gutters party walls party structures easements and appurtenances belonging to or used or capable of being used by the Lessees in common with the Lessor or the tenants or occupiers of the flat and the rest of the house such proportion in the case of any difference to be settled by a single arbitrator to be nominated by the President for the time being of the Royal Institute of British Architects
(xx) To pay to the Lessor every year on demand a sum equal to two fifths of every annual premium paid by the Lessor for a comprehensive insurance of the house to the full value thereof
(xxi) To pay to the Lessor every year on demand a sum equal to eight-nineteenths of the annual cost of centrally heating the house and of providing hot water such cost to be made up of the cost of fuel and the cost of maintenance and repairs to the central heating system and the hot water system
(xxii) To pay to the Lessor every year on demand the sum of Three pounds fifteen shillings being one-third of the annual rental of the electric bell and door-opening system payable by the Lessor to General Telephone Systems Limited
(xxv) To pay to the Lessor on demand two-fifths of the expense at all times and from time to time incurred by the Lessor in performing the covenant contained in Clause 3 (iii) hereof.
3. THE Lessor HEREBY COVENANTS with the Lessees that so long as the Lessees shall pay the rents hereinbefore reserved and observe and perform all the covenants conditions and agreements hereinbefore contained
(ii) To keep the house insured against comprehensive risks to the full value thereof in some insurance office of repute and to pay all premiums when the same shall become due and produce to the Lessees on demand the policy of such insurance or a duplicate thereof and the receipt for every premium
(iii) To keep the roof and outside walls of the premises in good repair and condition and to paint the exterior of the premises once in every seven years and except in cases of emergency the Lessor shall before carrying out any work under this sub-clause obtain not less than two competitive estimates from substantial and reputable firms of contractors and shall submit them to the Lessees for approval and the Lessees shall be deemed to approve the cheaper or cheapest of the said estimates unless the Lessees shall within one calendar month of the receipt of the...
To continue reading
Request your trial
-
The Mayor and Commonalty and Citizens of the City of London v Various Leaseholders of Great Arthur House
...the cost of all works that the landlord is obliged to carry out can be passed on to the lessees: Campbell v Daejan Properties Ltd [2012] EWCA Civ 1503, [2013] 1 P & CR 14 at 39 The second argument focuses on the opening phrase in the definition: repairs carried out “ in order” to. Mr Strak......
-
Tanner v Millar
...So far as the test for admitting further evidence on an appeal is concerned, I refer to the judgment of the Court of Appeal in Campbell v Daejan Properties Limited [2012] EWCA Civ 1503 at paragraph [31] in the judgment of Jackson LJ, where he said this: "It is convenient to deal with the fr......
-
Tanner v Miller
...vary the practice of this court. Finally, Mr Khan referred me to the decision of another constitution of this court in Campbell v Daejan Properties Limited [2012] EWCA Civ at 1503, and in particular at paragraph 31, where Jackson LJ states that the power to admit fresh evidence on appeal mu......
-
Decision Nº LRX 25 2014. Upper Tribunal (Lands Chamber), 30-09-2014
...The following cases are referred to in this decision: Billson v Tristrem [2000] L&TR 220 (CA) Campbell v Daejan Properties Limited [2012] EWCA Civ 1503 Rapid Results College v Angell [1986] 1 EGLR 53 Gilje v Sharlgrove Securities Limited [2001] EWCA Civ 1777 DECISION Introduction The appell......