Pritchard v Briggs

JurisdictionEngland & Wales
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE GOFF
Judgment Date11 April 1979
Judgment citation (vLex)[1979] EWCA Civ J0411-4
Docket Number1973 P No 1625
CourtCourt of Appeal (Civil Division)
Date11 April 1979
Robert Ellis Pritchard
and
Christopher Bassin Briggs & Others

[1979] EWCA Civ J0411-4

Before:

Lord Justice Stephenson

Lord Justice Goff (Not present)

Lord Justice Tampefan

1973 P No 1625

In The Supreme Court of Judicature

Court of Appeal

On Appeal from The High Court of Justice

Chancery Division

Group B

MR R. SCOTT, Q.C. and MR M.I. WATERS (instructed by Messrs Tuck & Mann & Geffen, T.D. Jones & Company, London Agents for Messrs, Gwyndaf-Filliams & Roberts, Porth Madog) appeared on behalf of the Appellants.

MR H.E. FRANCIS, Q.C, and MR J.G. BOGGIS (instructed by Messrs. Foysters Manchester) appeared on behalf of the Respondents.

LORD JUSTICE STEPHENSON
1

Lord Justice Goff has prepared the first judgment and he has asked me, in his absence, to read it for him.

LORD JUSTICE GOFF
2

This is an appeal from a judgment given on the 24th June, 1977 by Mr Justice Walton, whereby he dismissed the plaintiff's action for specificperformance of a contract for the sale of certain land and premises at pen-y-Gwryd in Snowdonis, which contract had resulted from the exercise by him of a certain option; dismissed a counterclaim by the First and Second Defendants for possession of that same property, and also third party proceedings by the Plaintiff as defendant to counterclaim against the Third and Fourth Defendants.

3

The Plaintiff appeals against the dismissal of the action, but there is no appeal against the dismissal of the counterclaim or of the Third Party proceedings.

4

The history of the matter is as follows:

5

In 1933 a certain Major and Mrs Lockwood acquired lands in the Snowdonia National Park in the Parish of Beddgalert and situate on both sides of a road there. On one side the property includes the Pen-y-Gwryd Hotel, which is very well known, and adjoining it a dwellinghouse and gardens called Hafod-y Gwynt. On the other side of the road the property includes a small petrol filling station having two or three pumps and ancillary buildings. There is also a car park, which, save that it is used by coaches, is not a facility going with the Hotel There is also on that side a large lake which was made by the Major and intended to provide an amenity for the Hotel.

6

The Third Defendant is a nephew of Major and Mrs Lockwood, and at one time he managed the Hotel for them for a period of about three years whilst the Major was in Burma.

7

In 1944 Major Lockwood decided to retire. He and his wife, therefore, sold the Hotel which was bought by a Mr Riddett.

8

The conveyance to him is dated 14th August, 1944 and it contained a provision which is a central feature of this action, and it is in these terms - am! I read from page 269 of the bundle: "(4) The Vendors to the intent and so that the covenant hereinafter contained shall at all times hereafter be binding on such of the land and premises conveyed by the Principal Deed and a Conveyance dated the fourth day of February One thousand nine hundred and twenty five made between Sir Richard WilliamBulkelly Baronet of the one part and the said Arthur Lockwood of the other part as are not hereby assured (which lands are hereinafter referred to as the retained lands) and enure for the benefit and protection of the lands hereby conveyed and of every part of such lands Do hereby for themselves and their successors in title jointly and each of them doth for himself or herself and his or her successors in title (separately convenant with the purchaser and his successors in title) the owner or owners for the time being of the land hereby conveyed that: (A) No building or part of a building now ox hereafter on the retained lands or any part thereof shall at any time hereafter be used as a hotel or road house or for the reception of paying guests (B) That so long as the purchaser shall live and the Vendors or the survivor of them shall also be alive the Vendors will not nor will either of them sell or concur in selling all or any part of the retained lands without giving to the purchaser the option of purchasing the retained lands and the fixtures and petrol pumps thereon at the price in the case of the retained lands of three thousand pounds and in the case of the fixtures and petrol pumps of a valuation thereof to' be made in accordance with clause 3 of the Conditions of Sale known as the Law Society's Conditions of Sale (1934) The option shall be given in writing and shall not be revoked or altered within twenty one days from the giving thereof and all rights of the purchaser under this provision (B) shall cease unless the offer is accepted within twenty one days from the receipt by the purchaser of the offer. If the offer is accepted the title snail commence as to part with the Principal Deed and as to the remainder with the said Conveyance dated the fourth day of February One thousand nine hundred and twenty five and the sale shall be completed and vacant possession given to the purchaser at the expiration of one month after the acceptance of the offer and the said Conditions of Sale shall apply to the contract.

9

It will be observed that the preamble is in the form usually adopted when imposing restrictive covenants, paragraph A is an ordinary covenant of that nature and paragraph B which gives a right of pre-emption is entirely negative in form. I will refer to the land and premises to which that right re-Lates as the retained lands.

10

On completion of this sale Major and Hrs Lockwood went to live at Hafod-y-Gwynt.

11

The right of pre-emption contained in clause 4 B of the Conveyance of 1944 whatever its true construction and effect may he, was duly registered as a Class C (iv) Land Charge on the 17th December, 1944.

12

On that same day, Mr Riddett sold the Hotel to a Mr Mather and the conveyance to him contained an express assignment of the right of pre-emption. About the same time the first two Defendants, Mr and Mrs Briggs, became the managers of the Hotel for Mr Mather and later they bought it from him. The conveyance to them in dated the 28th August, 1954 &and again there was an express assignment of the right of pre-emption, which, therefore, undoubtedly became vested in the 1st and 2nd Defendants

13

In the previous year, 1953, Major and Mrs Lockwood had made an oral agreement with the Plaintiff to sell him the petrol filling station for £300 and he paid a deposit of £7, Mr Mather objected that this would be a breach of his right of pre-emption, and the sale was abandoned. Whether or not the Plaintiff at this time obtained full information about the right of pre-emption, it is common ground that be was at all material times fully aware of its existence, quite apart from any knowledge imputed to him by its registration as a land charge.

14

Instead of the proposed sale, Major and Mrs Lockwood gave the Plaintiff a weekly tenanoy at 12/6d a week, which was followed by a five year term on the 1st October, 1953 When this expired he was granted a new lease on the 22nd January, 1959 for a further five years from the 1st October, 1958 at a rent of £156. per annum This is a very important document because it saw the birth and contained the terms of an option to buy the freehold reversion, which was repeated in a subsequent lease dated 3rd February, 1964, which is the option exercised by the Plaintiff.

15

That lease contained in clause 3 (a) the usual landlord's covenant for quiet enjoyment, in clause 3 (c) an option to renew the term for a furtherfire years, and in clause 3 (d) an option to purchase the reversion, which was in these terms "If the tenant shall or his successors in title after the death of the survivor of the landlords desire to purchase the retained lands and shall before the expiration of three months of the death of the said survivor give notice in writing to the personal representatives of the said survivor then the landlords hereby covenant so as to bind their respective estates that the personal representatives of the survivor will upon the expiration of such notice and upon payment of the sum of Three Thousand Pounds together with all arrears of rent up to the expiration of the notice and interest on the said sum of Three Thousand Founds from the expiration of the notice until actual payment at the rate of 65 per centum per annum convey the retained lands to the tenant in fee simple. The National Conditions of Sale for the time being in force shall govern the terms of the sale as between the said personal representatives and the tenant or his successors in title".

16

In 1953 there was an exchange of correspondence between Major Lookwood and Mr Mather with a view to seeing if a sale to him could be arranged, but nothing came of this, and it has no materiality for present purposes cave that it was later set up by or on behalf of Mr Inman, acting for Major Lcckwood, that it had caused the right of pre-emption to become spent Indeed, the Plaintiff actually pleaded that it had produced that result, but abandoned this contention at the trial on inspection of the relevant correspondence,

17

The 1959 lease having expired there were negotiations between Major and Mrs Lookwood on the one hand and the Plaintiff on the other for a new lease. The Plaintiff complained that the rent he was being asked to agree to pay was too high. Major Lookwood sought to make the option one at market value ruling at the time of its exercise instead of a fixed £3000. In the end a compromise was reached. The Plaintiff gave way and accepted he proposed new rent, and Major Lookwood agreed that the option should remain unchanged.

18

Accordingly, the lease of 1964 was granted for a term of 21 years from 1st October, 1963 at an escalating rent, commencing at £520 per annum and rising to £780 in the sixth year. This new lease was endorsed on the lease of 1959and contained by reference the same option to purchase the reversion, This. option was registered as a Class C (iv) land charge on 10th February 1964.

19

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