Penn v Gatenex Company Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE SELLERS,The Master Of The Rolls
Judgment Date28 February 1958
Judgment citation (vLex)[1958] EWCA Civ J0228-2
CourtCourt of Appeal
Date28 February 1958

[1958] EWCA Civ J0228-2

In The Supreme Court of Judicature

Court of Appeal

Before:

The Master of the Rolls

(Lord Evershed)

Lord Justice Parker

and

Lord Justice Sellers

Philip Pent
and
Rose Elizabeth Peun
Plaintiffs (Respondent)
and
Gatenex Company Limited
Defendants (Appellant)

R H. HEATHCOTE-WILLIAMS, Q. C. and MR BERNARD FINLAY (instructed by Messrs. Hare wood & Co.) appeared as Counsel for the Appellants.

R G. LOVEGROVE (instructed by Mr Syed A. Rafique) appeared as Counsel for the Respondents.

THE MASTER OF THE ROLLS
1

: This was an action for damages for breach of covenant consisting of a failure to keep the refrigerator in the Plaintiffs' flat in proper working order. The two Plaintiffs are now joint statutory tenants of the flat, No. 255b Mine head Court, South Harrow. The original contract of tenancy is dated the 3rd July 1942, and was made between the Defendants' predecessors in title, Regional Properties Limited., and the two Plaintiffs together with a lady (whom I take to be the mother of the first Plaintiff) as guarantor. This contract has been duly determined by notice to quit. Nothing, however, turns upon this last-mentioned circumstance slice it is conceded by Mr. Deathcote-Williams that so long as the Plaintiffs remain statutory tenants, they and the Defendants alike are bound by all the relevant terms of the original contract.

2

The refrigerator is not of a kind working by gas or electricity such that the tenants can plus it to the main gas or electricity supply in the flat. It seems to be of kind the operation of which depends upon the supply of the appropriate fuel or motive power from a central apparatus which has always been in the sole control of the landlords. It appears that the Defendants and their predecessors in title own and owned twenty-four flats including that of the Plaintiffs, and that each flat was similarly equipped by a refrigerator only capable of working by the means which I have stated.

3

The Plaintiffs' claim (as a result of an amendment allowed by the learned Judge) is put alternatively upon the basis of an express or of an implied covenant. Paragraph 3 of the Particulars of Claim as amended states "there were express or implied terms of the said Agreement (of tenancy) that the said Regional Properties Limited. should supply refrigeration to the said refrigerator and or the said premises and should maintain and keep the said central plant in proper working order. Further or alternatively the aforesaid terms, are to be implied from the nature and circumstances of the said Agreement." Mr. Love grove, Counsel for the Plaintiffs before us, has in no way sought to qualify or to reside from this statement of the Plaintiffs' claim.

4

The relevant facts as found by the Judge or as conceded before us are those: At the time that the second Plaintiff went into occupation (for her husband was then absent serving with the Armed Forces of the Crown) the refrigerator worked only spasmodically. It was, said she, temperamental; but from the date of the acquisition of the reversion of the flats by the Defendants (which the second Plaintiff placed in October 1956) the refrigerator caused altogether to function. Mrs. Penn may or may net be right in saying that the acquisition by the Defendants of their title to the flats coincided with the total cesser of functioning on the part of the refrigerator but it does not for present purposes matter. True, the learned Judge somewhat reduced the damages having regard to the early imperfections in the performance of the refrigerator and there is no appeal from his award as to damages. Put there is no doubt that the mechanism controlling the refrigerator is now in such a state of disrepair that the Plaintiffs' instrument docs not and cannot work at all unless the mechanism is entirely rehabilitated. It is the case of the Defendants that there is no obligation upon them to make the refrigerator work. On the other hand, the case of the Plaintiffs is, as already stated, that the Defendants are bound to maintain and keep the central apparatus in proper working order.

5

It is plain that the learned Judge greatly sympathized with the Plaintiffs, and in this respect I entirely share his view. The refrigerator is a bulky object which fully occupies the space that would otherwise be employed as a larder. It was said with great force by Mr. Love grave that in its present condition the flat lacks the ordinary means which every housewife requires for keeping perishable food. True, the tenancy agreement was made in the most critical period of the late war when, as we all know, it was difficult to obtain supplies of many kinds of goods and labour and then the apparatus for supplying power to the refrigerator was already deficient. Still, the then landlords forbore from inserting in the document which they put forward any reservation clearly protecting them from the alleged liability. On the contrary, they put forward a document which required the joinder of a guarantor for the Plaintiffs' obligations and of which the second clause contained no loss than 18 separate covenants on the part of the tenants comprehending such matters as the keeping of rabbits and reptiles, the mowing of lawns and the weeding of gardens, which nay have owed their presence more to precedents than the requirements of the actual contract being made. But those criticizes and the sympathy which I feel for the Plaintiffs cannot be invoked in order to enable the Court to discern the covenant alleged if the covenant is not there expressly or by necessary implication.

6

The essential provisions of the contract are found in the babendum, with such assistance as can be got from the landlord's covenant for quiet enjoyment in Clause 3. The habendum, so far as relevant, if as follows:- "All that flat situate and known as 255b, Wine head Court…. with the use of the fixtures and fittings therein belong to the landlord'. The material terms of the covenant for quiet enjoyment, which is in common form, include (Clause 3 (a)):- "…shall peaceably hold and enjoy the demised premises…. without any interruption by the landlord…"

7

Although the Plaintiffs' case is pleaded alternatively on the basis of express or implied obligation, in truth the problem is in my judgment one and the same. Nor, in my view, can Mr. Love grave improve his position by invocation of the principle that a landlord cannot derogate from the grant; for it is well established that the principle cannot serve to enlarge the grant. The question then is:- according to the terms of the contract and particularly Clauses 1. and 3 (a), did the landlords expressly or by necessary implication promises to provide the motive power which alone would render the refrigerator capable of use as such, and to do all such other things by way of repairs as would be incidentally necessary? I can conveniently dispose here of one point. Mr Heathcoat Williams contended that the refrigerator, even if incapable of use for the purposes of or which it had been made, could still serve for the tenants the purpose of containing such things as tinned food and boots or other objects which called for no treatment by way of refrigeration. In my judgment, there is no substance in this argument. Beyond doubt the use, of the refrigerator, in so far as it was contemplated by the parties to the contract, must have been its use for refrigeration.

8

Mr. Love grave put his case very simply (and there fore, as is so often true, most effectively) thus:- It is not in doubt that the refrigerator was and is one of the fixtures and fittings belonging to the landlord, the use of which was included in the grant; if, therefore, the landlord promised that the tenants should have the use of the refrigerator, how is that promise fulfilled, if in fact the refrigerator cannot be used at all?

9

In support of this formulation of his case, Mr. Love grave referred to such authorities as Birmingham and Dudley Banking Company v. Ross, 38 Chancery Division, 295, (in this Court) as supporting the proposition that "when a man grants a house, he grants that which is necessary for the existence of the house" "prima facie he cannot interfere with that which he has granted: there is an implied obligation on him not to interfere with that which he has granted, namely, the house and the enjoyment of the house" (a per Lord Justice Cotton at pages 308 and 308), Mr Love grove referred also to the judgment of Mr Justice Sterling in Aldin v. Latimer 1894, 1 Chancery 437, whore the learned Judge referred to "the principle that the grantor of land to be used for particular purpose is under an obligation to abstain from doing anything on the adjoining property belonging to him which would prevent the land granted from being used for the purpose for which the grant was made."(). Assuming, however, that Mr. Love grove can get in the present case so far as to make such principles applicable, he would still be faced with the difficulty that the landlords her have not in fact done anything. They have not, according to the evidence, deliberately disconnected to refrigerator from its motive power. They have merely r. frained from taking steps to prevent the mechanism already deficient from becoming also inoperative. Their sins, if sins they be, are therefore sins of omission only. It is true that omissions may amount to breaches of the ordinary covenant for quiet enjoyment; bat it seems that such emissions should be of character as would amount, or be liable to amount, in themselves to wrongful acts. see Sooth v. Thomas 1926 Chancery, page 109 (cur Mr Justice Russell and page 397 in this Court): where a landlord's omission consisted of failure to repair an artificial watercourse so that the results would have been liable to constitute wrongs to a neighboring landowner.

10

But in my judgment Mr Love grove cannot in the present...

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5 cases
  • Liverpool City Council v Irwin
    • United Kingdom
    • House of Lords
    • 31 Marzo 1976
    ...lift", but I think there is no doubt that the same demise or grant must be implied here, and if so can lead to the same result. 17In Penn v. Gatenex Co. Ltd. [1958] 2 Q.B. 210, a case about a refrigerator in a flat, Sellers L.J. said this: "If an agreement gives a tenant the use of somethi......
  • 陳健康 訴 宋麗兵
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    • District Court (Hong Kong)
    • 23 Diciembre 2009
    ...v. Xuan Yi Xiong [2004] 1HKC 353 )。即使是單位内的固定附著物(fixtures),在沒有明訂的維修條款或其他協議的情況下,業主是沒有責任維修或保養至運作狀態(working order)(Penn v. Gatenex Co. Ltd. [1958] 2 QB 210; Yu Yiu Kong Samuel v. Kobylanski, Stephen Andre DCCJ 20. 概括而言,業主在法律上亦無隱含保證,所租樓宇是適宜人居住的(Jones v. Green [1925] 1 KB 659) 或適合於租客租用的目的。業主甚至沒有責......
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    • Hong Kong
    • District Court (Hong Kong)
    • 8 Mayo 2013
    ...v. Xuan Yi Xiong [2004] 1HKC 353 )。即使是單位内的固定附著物(fixtures),在沒有明訂的維修條款或其他協議的情況下,業主是沒有責任維修或保養至運作狀態(working order)(Penn v. Gatenex Co. Ltd. [1958] 2 QB 210; Yu Yiu Kong Samuel v. Kobylanski, Stephen Andre DCCJ 20. 概括而言,業主在法律上亦無隱含保證,所租樓宇是適宜人居住的(Jones v. Green [1925] 1 KB 659) 或適合於租客租用的目的。業主甚至沒有責......
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