Price v Strange
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GOFF |
| Judgment Date | 27 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0427-2 |
| Docket Number | 1974 P No. 5582 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 April 1977 |
[1977] EWCA Civ J0427-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Chancery Division
Group B
(His Honour Judge Thomas. Sitting as a High court Judge of the Chancery Division)
Lord Justice Buckley
Lord Justice Scarman
and
Lord Justice Goff
MR C.A. BRODIE and MR. MICHAEL KING (instructed toy Messrs. Halsey, Lightly & Hemsley, Solicitors, London) appeared on behalf of the Plaintiff (Appellant)
MR. GEOFFREY JAQUES (instructed by Mr. Timothy Boulton, Solicitor, London; appeared on behalf of the Defendant (Respondent).
LORD JUSTICE BUCKLEY I have asked Lord Justice Goff to deliver the first judgment.
This is an appeal from a judgment of his Honour Judge Thomas sitting as an additional Judge of the Chancery Division, which he gave on 20th February 1976.
The action was brought for specific performance of an oral agreement for an under lease, or alternatively damages. The learned judge refused both claims, albeit with reluctance, and dismissed the action with costs The Plaintiff now appeals to this court
The facts are simple The respondent (the defendant in the action) Mrs. Strange, is and was at all material times the lessee of No 96 Lertham Gardens London for the residue of a term of 99 years from the 24th June 1933 The property is divided into flats and maisonettes and the appellant, who is a builder, was living in the maisonette on the first and second floors, and had been so since 1966 or 1967, but his tenancy had expired in 1971 and he was holding over. He was sharing this accommodation with his brother and sister-in-law and another gentleman, which was a breach of the covenants in the expired lease, so that if he ware to have a fresh tenancy this term would require to be altered. There was also a further minor breach of those covenants in that they forbad the keeping of pets whereas the appellant had two cats.
His rent was £550 p. a which he paid down to the 10th February 1974.
The appellant's position was, therefore, very insecure, but the respondent was also in trouble because the premises were out of repair and her landlords had served a notice under section 146 of the Law of Property Act 1925.
The respondent did not live on the premises but at 122 Lexham Gardens. She had a friend and companion, a Mrs, Walsh, whooccupied the basement flat at No 96
The landlord's notice caused concern to the respondent, Mrs Walsh and the appellant, and on the morning of Sunday l0th February Mrs, Walsh approached him on the subject and as a result he went that evening to see the respondent at No. 122 After some discussion, they reached an oral agreement, and the next day the appellant wrote a letter to the defendant recording what had happened, and in the fourth paragraph of that letter he said this: "In these circum- stances it was agreed that in consideration of carrying out the necessary repairs with all reasonable speed, thereby putting the property into a good state of repair by effecting external repairs and decorations, including extensive repairs to the roof and by effecting internal repairs and decorations to the common parts of the property, upon the completion of these repairs, you will grant to me and I will accept, a new lease of my flat being the first floor maisonette of the above property, for a term to expire upon the expiry of your existing lease of the entire property, (less a nominal reversion) at a rent throughout of £600 per annum, and otherwise upon the terms of the previous lease dated 31st Nay, 1966, except that the existing use of the flat is permitted, in so far as it is at variance with the terms of that lease".
The agreement was pleaded in paragraphs 3 and 4 of the statement of claim as follows: "(3) On the tenth day of February 1974 and in consideration of the matters contained in paragraph 4-hereof the Defendant orally agreed to grant to the Plaintiff an Underlease of the Flat (hereinafter called 'the Second Underlease') for a term equivalent in length to the residue of the term of years held by the Defendant less a nominal reversion from the tenth day of February 1974- at the yearly rent of £600 per annum and otherwise upon the same terms as the First Underlease save and except thatthe covenant as to user contained in the First Underlease should be varied in so far as is necessary to permit the continuation of the current user of the Flat.
"(4) In consideration for the grant of the Second Underlease the Plaintiff orally agreed with the Defendant to carry out certain repair works to those parts of the interior and exterior of the said building which were demised to the Defendant under the terms of her said lease",
The agreement was denied in the defence, and it will be seen that the letter and the pleading are not in identical terms, but there was an express finding of fact by the learned judge as follows "I am satisfied that an oral agreement was reached between the parties on 10th February 1974- and that it was in the terms alleged by the plaintiff in his pleadings". The learned judge further found that the parties had agreed that the new Underlease should commence forthwith on the 10th February 1974. Finally in this connection he was satisfied "that what the parties intended was that a sub-term for as long as possible should be carved out of the term created by the head lease; that is, a sub-term leaving a nominal reversion".
It is common ground that as from 28th February 1974- until at least 27th September 1974 the appellant paid and the respondent accepted rent at the increased rate of £50 each month corresponding with the rent of £600 per annum to be paid under the new Underlease.
Strangely enough the repairs to be done under the agreement were not pleaded, or shown by the evidence, as being those required by the section 146 notice, which the appellant actually did not see, but it was never suggested that there was any such uncertainty in that regard as would invalidate the agreement. On the other hand the appellant's counsel conceded at the trial that the works were. not such as the court would specifically enforce, and he has accepted that position "before us
The evidence as the learned judge found showed that "the plaintiff carried out work of repair and redecoration to the interior of common parts of No 96 between the middle of February and the middle of May 1974 and that since then the defendant herself has had the exterior, including the roof, repaired and redecorated. In other words the works required to be done by the plaintiff under the alleged agreement have all bean done"
The reason why the appellant did not himself finish this work was because the respondent refused to allow him to do so and repudiated the agreement by a letter from her solicitors dated 17th May 1974 which led to this action.
Respondent's counsel conceded at the hearing that if there were an agreement as the learned judge held there was, then the repair work done by the plaintiff and the payment and acceptance of the increased rent were sufficient acts of part performance to take the case out of section 40 of the Law of Property Act if relief could otherwise be granted in equity. However the defence was that specific performance could not be granted because the remedy was not mutual at the date of the contract. The respondent also pleaded a case of hardship but that was abandoned at the trial Finally it was contended that there was no jurisdiction under Lord Cairns Act to grant damages in lieu of specific performance
The learned judge accepted as good law certain statements in Fry on Specific Performance and quoting from the 6th Edition he said this: "My understanding of the law is that it is correctly stated in the sixth edition of Fry on Specific Performance at pages 219 and 222, and also page 223. Fry says at page 219: 'A contract to be specifically enforced by the court must, as a general rule,be mutual 9 that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them
" At page 222 in paragraph 465 he says: The mutuality of a contract is, as we have seen, to be judged of at the time it is entered into'
"At page 223 Fry says 'From the time of the execution of the contract being the time to judge of its mutuality it further follows, that the subsequent performance by one party of terms which could not have been enforced by the other will not prevent the objection which would arise from the presence of such terms'
"See also Bayley and Shoe smith (8) law Journal Chancery, at page 626, at pages 628 and 629, and ( Hope v. Hope 8 De Gex, MacNaughton and Gordon, page 751). I hold accordingly",
So far as damages are concerned he again adopted what was stated in Fry and disposed of that matter quite shortly as follows: "Fry deals with the matter at page 285 in paragraph 594 which reads as follows: 'It has been further held that the doctrine of part performance does not extend to enable the Court to award damages on a parol contract of which specific performance could not have been granted. That statement is supported by the case cited by Fry, namely, Lavery v. Pursell (59 Chancery Division, 508 at pages 518 and 519) 1 cannot therefore award the plaintiff damages in lieu of specific performance".
The learned judge cited the opening words only of the first part of paragraph 465 which continues as follows: "So that it is no objection to the plaintiff's right, that the defendant may by delay, or other conduct on his part subsequent to the contract, have lost his right against the plaintiff"
The concluding part of that paragraph on page 223, which thelearned judge also reed, was not in the original book,...
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