Property & Bloodstock Ltd v Emerton ; Bush and Another v Property & Bloodstock Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS |
| Judgment Date | 08 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0508-2 |
| Date | 08 May 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0508-2
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Sachs
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Ungoed-Thomas)
Mr. LEOLIN PRICE (instructed by Messrs. Kidd, Rapinet, Badge & Co.) appeared on behalf of the Appellants (Bush and Emerton).
Mr. J. A. BRIGHTHAN, Q.C. and Mr. MARK NESBITT (instructed by Messrs, Barton & Ramadan) appeared on behalf of the Respondent Company.
Mr. N.C. BROWNE-WILKINSON (instructed by Messrs, Partridge, Moss & Co., Teddington, Middlesex) appeared on behalf of the Respondent Cressey.
I will ask Lord Justice Danckwerts to deliver the first judgment.
This is an appeal from the judgment of Mr. Justice Ungoed-Thomas, given on the 22nd March, 1967. The point is a comparatively short one, though the history of the case is complicated. The point is whether it is still open to a mortgagor (or borrower) to redeem when the mortgagee has entered into a contract for the sale of the mortgaged property which contains a provision (the property being leasehold) requiring the vendor to obtain the landlord's licence to assign - or, more accurately in the present case, his consent to the assignment. The learned judge held that the borrower's right of redemption was not available, and I may say, at once, that in my opinion he reached the right conclusion.
There are in fact two appeals, as there are two actions involved in the case. The first one (referred to before us as No. 25) was begun by the mortgagees, Property & Bloodstock Limited, by an originating summons dated the 3rd November, 1966, against Philip John Emerton, the trustee under a deed of assignment executed by the borrower, Mr. Bush, for the benefit of his creditors, asking for an order for possession of the property and an account.
The second action (referred to as No. 24) was begun by writ on the 17th January, 1967, by Bush and Emerton against Property & Bloodstock Limited, Arthur James Cressey (the purchaser under the contract of sale) and Mrs. Bush (who was also a mortgagor) claiming: (1) redemption; (2) an account; (3) an injunction against the mortgagees and the purchaser completing the contract by assignment; and (4) an order for the concurrence of Mrs. Bush.
The two appeals have been dealt with together in the argument.
The mortgaged property is Boulter's Inn, Maidenhead, which adjoins the well known Boulter's Lock on the River Thames, ofwhich Mr. and Mrs. Bush had been tenants since April, 1960. By a lease dated the 8th January, 1964, Mr. and Mrs. Bush surrendered the existing term and the Corporation of the Borough of Maidenhead demised to them the property in question for a term of 21 years from the 14th April, 1962, at the yearly rent of £500 plus a sum for insurance on the terms contained in the lease. The only provisions that it is necessary to mention are: clause 4 (9), "not to assign underlet or part with the possession of the demised premises or any part "hereof", and clause 6, which contains a condition of reentry on breach of covenant in the ordinary form. As the covenant against assignment is in the absolute form, it may be that the provisions of section 19 (1) of the Landlord and Tenant Act, 1927, against unreasonable withholding of consent, do not apply. But I think that nothing tarns on that. It appears that the term of years was acquired on trust for Mr. Bush alone beneficially.
By a deed dated the same day, Mr. and Mrs. Bush charged the leasehold term by way of legal mortgage to secure an advance of £10,500 (now reduced to £8,500) made by property & Bloodstock Limited, and interest at 10 per cent, per annum. Further borrowings were effected by Mr. and Mrs. Bush or Mr. Bush alone, and charges executed in respect of the property and the goodwill of the business carried on upon these premises, which it is not necessary to particularise.
On the 21st April, 1965, Mr. Bush executed a deed of assignment for the benefit of his creditors to Mr. Emerton, as trustee, is respect of his property, but leaseholds were excepted, and Mr. Bash declared himself a trustee of those (that is, the leaseholds) for Mr. Emerton. As a result of this Mr. Emerton entered into possession of the property and carried on the business. So far as this was a breach of the covenants in the lease, it was waived by the landlords' acceptance of rent.
By notice in writing dated the 23rd April, 1965, the solicitors of Property & Bloodstock Limited required payment forthwith of the principal moneys and interest owing under thelegal charge of the 3rd January, 1964. Part of the moneys were paid hut part of the principal and interest remained outstanding.
On the 26th September, 1966, the mortgagees entered into a contract for the sale of the leasehold property to Mr. Cressey for £25,000, and a deposit of £2,500 was paid by the purchaser. The contract is on a form of contract, on the outside of which Property & Bloodstock Limited are described as "the Vendor" and Mr. Cressey is described as "the Purchaser" of the property described "in the accompanying Particulars of Sale, at the price of £25,000, subject to the accompanying Conditions of Sale, and that the purchase shall be made and completed according to the said Conditions of Sale so far as the same are applicable to a sale by private treaty".
On the face of the document, the contract is an ordinary contract of sale and purchase, and though "Conditions" are referred to, the matters so referred to are merely the terms of the sale and purchase, and the contract would, in my opinion, not normally be regarded as a conditional sale and purchase. The greater part of the argument for the appellants has, however, been conducted on contentions that the contract is conditional and did not create the relationship of vendor and purchaser.
Inside, the form bears the heading "Particulars of the Conditions of Sale", and then follows, as the "Particulars", the description of the property sold. After that follow "Special Conditions of Sale". Paragraph states: "The sale is subject to the following Conditions, and to the Conditions known as the National Conditions of Sale Seventeenth Edition so far as the latter Conditions are not inconsistent with the following Conditions". Paragraph states: "The completion date shall be the 24th day of October 1966". E: "The Tendor is selling as mortgagee". H: "The sale is with vacant possession on completion". Paragraph J is the vital one: "The sale is subject to the Vendor obtaining the consent of the Mayor Aldermen and Burgesses of the Borough of Maidenhead to the assignment of the said lease to the Purchaser".
In the National Conditions of Sale, the following must he referred to. "10 (1) Where the interest sold is leasehold for the residue of an existing term the following provisions of this Condition shall apply": and sub-paragraph (3) says: "The sale is subject to the reversioner's licence being obtained, where necessary. The fee for such licence shall be paid by the Vendor, but, if the licence cannot be obtained, the Vendor may rescind the contract on the same terms as if the Purchaser had persisted in an objection to the title which the Vendor was unable to remove". That is a reference to paragraph 8 sub-paragraphs (6) and (7) which results in the purchaser only receiving back the deposit without interest or costs.
The only other paragraph that need be referred to is paragraph 22, which enables either party by a special 28-day notice to complete and make time of the essence of the contract. No such notice has been served and so the equitable rule that time is not of the essence applies to the contract.
On the 30th September, 1966, Mr. Emerton entered into a contract of sale with another purchaser.
By the 20th October, 1966, it appears from a letter that the Maidenhead Corporation had agreed to grant a licence for the assignment to Mr. Cressey, subject only to the transfer of the justices' licence, as to which it was not anticipated there would be any difficulty. On the 24th October, 1966, the completion date arrived. The licence to assign had not yet been given, hut it was apparent that the licence would be given and it is clear that the purchaser, Mr. Cressey, was prepared to give further time for completion of the sale.
On the 3rd November, 1966, the proceedings for possession were begun by the mortgagees, and on the 9th December, 1966, an order for possession within 28 days of service of the order was made by the Master. On the 16th January, 1967, the redemption money was tendered by the borrowers and refused. There was some small question about the correctness of the amount, but no point was made about that.
On the 17th January, 1967, notices of motion were served in both proceedings, as a result of which, on the 18th January, 1967, ex parte orders were obtained restraining proceeding with the sale and holding up the order for possession. These orders were continued on the 24th January and the 7th February, 1967.
On the 7th March, 1967, the motions came on for hearing and were treated as the trial of the actions. Hearings took place on the 7th, the 8th and 10th March, 1967. On the 22nd March, 1967, Mr. Justice Uhgoed-Thomas delivered a very careful reserved judgment.
The position as regards the licence to assign is that the Maidenhead Corporation are still prepared to execute the licence, but this has been held up by the borrowers' proceedings and these appeals. Meanwhile both the vendor and the purchaser are quite prepared to wait for completion and remain bound by the contract of sale and purchase.
The powers of sale of the...
To continue reading
Request your trial
- M.F.I. Properties Ltd v B.I.C.C. Group Pension Trust Ltd
-
Corbett and another v Halifax Building Society and Others
...benefit of section 104 LPA. 18 The judge rejected a submission that he was bound by the decision of the Court of Appeal in Property & Bloodstock Limited v Emerton [1968] 1 Ch 94 to hold that damages was the only remedy for a mortgagor in the Corbetts' position, but that 'the remedies should......
-
Motorcycle Industries (1973) Pte Ltd and Another v Indian Overseas Bank
......, 31 and 33 Birch Road, Singapore (the `property`). The property was not subject to the Control of ...In Property & Bloodstock Ltd v Emerton Sachs LJ accepted that `upon the ......
-
Ken Fennell v Gilroy
...by them.” Citing Lord Waring v. London & Manchester Assurance Co. Limited [1935] Ch. 310 and Property & Bloodstock Limited v. Emerton [1968] Ch. 94, Wylie further observes at para. 14.65: “It has been held that the statutory power is exercised once the mortgagee enters into a contract to ......
-
Conditional Agreements
...13 9 Ibid at 128. 10 See chapters 2–6. 11 See Chapter 7. 12 Property & Bloodstock Ltd v Emerton ; Bush v Property & Bloodstock Ltd, [1968] Ch 94 (CA). 13 Ibid . Lord Justice Danckwerts observed, at 116, with respect to the Aberfoyle decision: “Lord Jenkins thought that the contract was so c......
-
Conditional Agreements
...9 Ibid . at 128. 10 See Chapters 2 to 6. 11 See Chapter 7. 12 Property & Bloodstock Ltd. v. Emerton ; Bush v. Property & Bloodstock Ltd., [1968] Ch. 94 (C.A.). Conditional Agreements 715 rectness of Lord Jenkin’s observations in the Aberfoyle decision was doubted. 13 Where, however, the con......
-
Conditional Agreements
...9 Ibid . at 128. 10 See Chapters 2–6. 11 See Chapter 7. 12 Property & Bloodstock Ltd. v. Emerton ; Bush v. Property & Bloodstock Ltd., [1968] Ch. 94 (C.A.). Conditional Agreements 677 rectness of Lord Jenkin’s observations in the Aberfoyle decision was doubted. 13 Where, however, the condit......