Nazirali Sharif Tejani v Fitzroy Place Residential Ltd
| Jurisdiction | England & Wales |
| Judge | Ms Veronique Buehrlen |
| Judgment Date | 02 November 2022 |
| Neutral Citation | [2022] EWHC 2760 (TCC) |
| Docket Number | Case No: HT-2020-000162 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 2760 (TCC)
Ms Veronique Buehrlen K.C.
Sitting as a Deputy High Court Judge
Case No: HT-2020-000162
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
T.C. Dutton KC and Mark Lorrel (instructed by Mortimer Court Chambers) for the Claimant
Gary Blaker KC and Paul De La Piquerie (instructed by Bryan Cave Leighton Paisner LLP) for the Defendants
Hearing dates: 10 to 13 and 17 October 2022
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Wednesday 2 November 2022 at 10.30am
Introduction
This case is concerned with noise emanating from the façade of an apartment situated at Block 7, Fitzroy Place, London W1T 3BP (the block being known as “7 Pearson Square”). The apartment is number 801 (“the Apartment”). The Claimant, Mr Nazirali Sharif Tejani (“Mr Tejani”), purchased the Apartment off-plan in July 2012. The First Defendant, Fitzroy Place Residential Limited, is the landlord of the residential apartment leases at the development known as and situate at Fitzroy Place, London W1 (“Fitzroy Place”) and was the vendor of the Apartment to Mr Tejani. The Second Defendant, 2–10 Mortimer Street GP Limited, was the developer of Fitzroy Place and employer of the main contractor for the development, that is Sir Robert McAlpine Limited (“SRM”).
Mr Tejani purchased the Apartment pursuant to a written agreement entered into between him, the First Defendant as Seller and the Second Defendant as Developer in 2012 (“the Agreement”). By the Agreement the First Defendant agreed to grant Mr Tejani a lease of the Apartment. The price was £2,595,000. The Development was completed in about May 2016 when the First Defendant granted Mr Tejani a lease in respect of the Apartment commencing on 1 January 2015 for a term of 990 years (“the Lease”) as envisaged by the Agreement.
Mr Tejani complains of noises emanating from the façade of the Apartment. Whilst there have been several changes to how Mr Tejani's case has been put, by the close of trial the primary claim was that the noises constitute an actionable private nuisance for which the First Defendant is liable. Alternatively, it is alleged that the First Defendant is in breach of the covenant of quiet enjoyment set out at clause 4.1 of the Lease by which:
“4 Landlords Covenants
4.1 Quiet Enjoyment
So long as the Tenant does not contravene any term of this Lease the Landlord covenants with the Tenant to allow the tenant to possess and use the Premises without interference from the Landlord or from anyone who derives title from the Landlord.”
Further or alternatively, Mr Tejani claims damages for breach of clause 5.6 of the Agreement on the part of the Second Defendant. By clause 5.6 of the Agreement:
“The Developer shall take reasonable steps to procure that any defects in the Works which relate to or affect the Apartment or the principal means of access thereto and which are the responsibility of the Building Contractor(s) under the Building Contract in relation to the Works to remedy shall be remedied as soon as reasonably practicable in accordance with the terms of the relevant Building Contract, provided always that the Buyer shall have given notice in writing to the Developer of any such defects no later than twenty — three (23) months following the Certificate Date and provided further that the Developer shall not be liable for any consequential damage whatsoever caused by any such items and defects (including without prejudice to the generality of the foregoing, any damage caused to any finishes, decorations, furnishings, furniture and chattels in the Apartment).”
The Re-Amended Particulars of Claim provide particulars in respect of the noise complained of at paragraph 15 of the pleading. These are that the noise can be heard throughout the Apartment, is intermittent in terms of timing and varies in volume. It is said to occur both day and night, to be loud enough to wake Mr Tejani and his wife while sleeping, cannot be suppressed or masked, and can be heard even if a television or radio is playing irrespective of whether internal doors are closed.
The Re-Amended Particulars of Claim further refer to the noise as “a loud clanking sound”, “a loud “pop” or “crack” at irregular intervals but at its worst “approximately every 15 minutes”. It is alleged by Mr Tejani that the noise has caused him (and his family) “annoyance, discomfort, distress and loss of amenity”, that as a result he has been unable to occupy the Apartment as he intended when he purchased it and unable to rent it out (paragraph 37 of the Re-Amended Particulars of Claim).
The claim is for damages measured by reference to a diminution in the capital value of the Apartment in the sum of £815,000. Alternatively, for damages for loss of amenity. Various other damages claims set out in the Re-Amended Particulars of Claim are no longer pursued.
The First Defendant denies that the noise complained of is such as to constitute an actionable private nuisance and/or breach of the landlord's covenant of quiet enjoyment. Both Defendants take issue with the true nature and extent of the noise complained of and Mr Tejani's case that it is such as to interfere with the average person's enjoyment of the Apartment. Strong objection is taken to Mr Tejani's evidence on an alleged diminution in the capital value of the Apartment because of the noise. In turn, the Second Defendant denies any breach of clause 5.6 of the Agreement, not only on the basis that the requisite written notice of a defect was never given by Mr Tejani to the Second Defendant but also on the basis that reasonable steps were taken by the Second Defendant to procure SRM to investigate and remedy the alleged defect.
The factual evidence
I heard factual evidence from Mr Tejani himself, his son Mr Amarali Tejani and his daughter, Ms Reshma Tejani all on behalf of Mr Tejani's claim. Mr Tejani insisted when cross-examined that the noise was unbearable and that the Apartment was not fit for habitation. I formed the impression that this was Mr Tejani's genuinely held belief, although it was clearly not supported by other evidence including the expert evidence. Mr Tejani referred to the noise as “a bang”. He also explained that there had been one night when he had been woken up by “a big bang, like something heavy has fallen on the floor”. However, it was also apparent that Mr Tejani had rarely stayed in the Apartment for more than “a day or two”, using the Apartment as a pied a terre when visiting London from his home in Leicester between August 2017 and March 2018. It should also be noted that Mr Tejani was often vague and sometimes confused when giving his evidence making it difficult to rely on his evidence to any great extent. The difficulties Mr Tejani had when giving evidence are explained by the fact that Mr Tejani suffers from ill health and the fact that he was not very much involved in the relevant events. That is because, on account of his and his wife's ill health, Mr Tejani handed over responsibility for the Apartment to his son, Mr Amarali Tejani in mid-2016. It is therefore Mr Amarali Tejani who dealt with matters in relation to the Apartment from mid-2016 onwards. As a result, Mr Tejani was not well placed to address many of the matters that were put to him in cross-examination.
Mr Amarali Tejani is Mr Tejani's only son and the person who has dealt with his father's business affairs and properties since 2016. His evidence was not always helpful because he had a strong tendency to answer the questions put to him in cross-examination with questions of his own with the result that the questions put to him often went unanswered. However, what was clear is that Mr Amarali Tejani became frustrated with the delays and failure on the part of the Defendants' agents and/or SRM to remedy what he clearly felt to be a defect in the Apartment. Mr Amarali Tejani maintained that the Apartment was “unhabitable and unusable”, although as explained below that is plainly not the case. Mr Amarali Tejani described the noise when giving his evidence as “a loud thud, like as if a weight – literally as if a weight is dropping on the floor” (picking up on Mr Tejani's evidence in cross examination) with other “very small noises in frequency” these being “a click and a pop, so like a click/pop”. He also referred to the noise as a “bang” and a “loud bang/thud” with other sporadic noises that are there then following that which are a lot lower in volume”. Mr Amarali Tejani's descriptions of the noise as a “loud bang/thud” did not correspond with the expert acoustic evidence including the recordings of the noise jointly presented to the Court by those experts. Nor did they correspond with the description of the noise at paragraph 15 of his witness statement which referred to “a sporadic creaking, popping or clicking sound”. In the circumstances, I was forced to conclude that where Mr Amarali Tejani's evidence was contradicted by the expert evidence, the expert evidence was to be preferred.
Ms Tejani is a clinical pharmacist at Victoria Park Health Centre in Leicester. Ms Tejani stayed occasionally at the Apartment. In her witness statement, Ms Tejani described the noise as “a loud click/bang...
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