Safin (Fursecroft) Ltd v The Estate of Dr Said Ahmed Said Badrig (Deceased)
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lord Justice Bean,Lady Justice King |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] EWCA Civ 739 |
| Docket Number | Case No: B2/2014/2965 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 2015 |
[2015] EWCA Civ 739
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Bean
and
Lady Justice King
Case No: B2/2014/2965
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
His Honour Judge Mitchell
2CL00348
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathaniel Duckworth (instructed by Howard Kennedy) for the Appellants
Jonathan Gaunt QC (instructed by Freeman Solicitors) for the Respondents
Hearing dates: 1 st July 2015
The Chancellor ( Sir Terence Etherton):
This appeal concerns the principles governing the exercise of the court's discretion to extend the time for complying with a consent order.
It is an appeal from an order dated 25 July 2014 of His Honour Judge David Mitchell, sitting in the Central London County Court, extending the time for the defendant, the respondent to this appeal, to comply with certain conditions contained in a consent order dated 10 January 2014 ("the Consent Order") granting the defendant relief from forfeiture of a lease of residential premises at Flat 26, Fursecroft, George Street, London W1H 5FL ("the Flat").
The Judge granted permission to appeal. He considered that that the case raises an important point of principle or practice and so directed under CPR 52.14(1)(a) that any appeal be heard by the Court of Appeal.
The background
There is a long factual background to these proceedings, the consent order and the order of 25 July 201Much of it is contained in the several witness statements made in these proceedings by the parties as well as the judgment handed down by Judge Mitchell on 25 July 201For the purpose of this appeal, the following short summary of the factual background is sufficient.
The appellant, Safin (Fursecroft) Limited ("Safin") is the leasehold owner of the building in which the Flat is situated. By a sub-underlease dated 17 August 1970 ("the Lease") the Flat was demised for a term of 63 years and 75 days from 1 April 1970. On 19 January 1979 Dr. Said Ahmed Said Badrig ("Dr Badrig") was registered as the proprietor of the Lease. Dr. Badrig died in 2002 but this fact remained unknown to Safin until some considerable time later. There has been no grant of probate or letters of administration in respect of Dr Badrig's estate.
On 21 February 2012 Safin commenced proceedings for possession of the Flat against "the Estate of Dr Said Ahmed Said Badrig (Deceased)" ("the defendant") for non-payment of rent and service charge, and for breaches of covenants in the Lease as to use and occupation, prohibiting assigning, underletting and parting with possession, and against alterations. Safin claimed in the proceedings to be entitled to forfeit the Lease by virtue of those breaches and to have done so by the issue and service of the proceedings. The arrears of rent and service charge claimed amounted to £22,770.29.
By an order dated 5 April 2012 Dr Badrig's son, Hossni Said Badrig (who calls himself Badrick in some of the witness statements) ("Mr Badrig") was appointed to represent Dr Badrig's estate pursuant to CPR 19.8(2)(b)(ii).
On 27 June 2012 District Judge Price made an order for possession of the Flat on or before 25 July 2012, and for payment by the defendant to Safin of £22,770.29, interest and assessed costs by 4pm on 25 July 2012. The order provided that, if the defendant filed and served an application for relief from forfeiture by 4pm on 25 July 2012, the order would be stayed.
The defendant applied for relief from forfeiture by an application dated 23 July 2012.
Directions were given for the service of witness statements, for permission to appoint a joint surveyor expert, for inspection of the Flat, and for the application for relief from forfeiture to be listed with a time estimate of two days.
The two day hearing listed to start on 25 February 2013 was vacated due to Mr Badrig's ill health. The hearing was re-listed for 14 and 15 January 2014. An application by Mr Badrig to vacate that hearing on the ground of Mr Badrig's ill health was refused.
On 10 January 2014, two days before the trial of the defendant's application for relief from forfeiture, the parties and their respective legal representatives attended a settlement meeting. Mr Badrig was advised by a barrister at the meeting. At the conclusion of that meeting the parties agreed the Consent Order. It provided for relief from forfeiture if certain specified conditions were satisfied. The Consent Order was as follows, so far as relevant:
"AND UPON the Defendant, through Mr Hosni Badrig, undertaking to the Court, and to the Claimant, not to commit further breaches of clauses 2(ix) (the alteration covenant), 2(x) (the alienation covenant), and 2(xxviii)(the user covenant) of the Lease
IT IS BY CONSENT ORDERED THAT
1. if the Defendant complies with all of the conditions in paragraph 2 below, by the specified dates, the Defendant shall be relieved from forfeiture, and shall hold the Property under the Lease;
2. the conditions referred to in paragraph 1 of this order are the following:
(a) the Defendant shall pay:
(i) the arrears of rent and service charges under the Lease, in accordance with paragraph 3 below; and
(ii) the Claimant's costs, in accordance with paragraph 5 below:
by 4.00 pm on 6 th March 2014
(b) the Defendant, through Mr Hosni Badrig, shall:
(i) repair all dislodged brickwork to the lightwell relating to the Property, at the Defendant's own expense, by 4pm on 10 th April 2014
(ii) to arrange and produce appropriate certification for all works done to the Property, including those to be done pursuant to paragraph 2(b)(ii) above, to comprise:
(1) building control certification, issued by Westminster Building Control, to show full conformity of the reinstatement works, by 4.00pm on 10 th April 2014
(2) a certificate from a competent and duly certified electrical engineer confirming the electrical installations are fully compliant with current regulations, such certification to be provided by 4pm on 6th March 2014
(iii) throughout the period between the/date of this order and the date when the Defendant shall be relieved from forfeiture, fully comply with his undertaking to the court as contained in the recitals above.
(c) the Defendant shall pay the costs sums agreed or determined pursuant to paragraph 4 below within 56 days of such agreement or determination as the case maybe
(d) in accordance with paragraph 6 below the Defendant shall pay ongoing damages for its use and occupation of the Property (equal to the rent and service charge which but for the Lease's forfeiture would otherwise become due on l April and on October of each year) in the half yearly sum of £6,480.96; such sum becoming due (without need of invoice) on 1 April 2014, 1 October 2014 and on the same days of each subsequent year until such time as the Defendant shall be relieved from forfeiture.
3. The Defendant shall pay the arrears of rent and service charge of £45,432.76 by 4.00 p.m. on 6 March 2014
4. The Defendant shall pay the Claimant's costs of and occasioned by the Defendant's application for relief from forfeiture to be assessed and paid on an indemnity basis, and to be subject to a detailed assessment if not agreed
5. The Defendant shall pay £35,000 on account of costs ordered to be paid under paragraph 4 above, by 4 pm on 6 March 2014
6. Pending the Defendant being relieved from forfeiture pursuant to paragraph 1 above, the Defendant shall pay the Claimant damages for its continuing use and occupation of the Property such payment being made on 1 April and 1 October of each year in the half yearly sum of £6,480.96
7. If the Defendant fails to comply with any of the conditions in paragraph 2 of this order (time being of the essence), then his application for relief from forfeiture shall be dismissed, without further application by the Claimant, and the stay ordered in paragraph 5 of the order of DJ Price dated 27 June 2012 shall be lifted."
On 5 March 2014 the defendant made an application for an order (1) setting aside the consent order on the grounds that Mr Badrig had been medically unfit to enter into it at the time and had been badly advised, or alternatively (2) extending time for compliance with the conditions in the Consent Order. That application was served on Safin on the evening of 6 March 2014.
The defendant did not make the payments required by the Consent Order by the 6 March 2014 deadline.
Safin applied on 7 March 2014 for a warrant of possession. The date for execution of the warrant was fixed for 28 April 2014.
On 8 April 2014 Judge Mitchell dismissed the defendant's application on the papers but gave permission for an application for an oral hearing. The defendant applied for an oral hearing on 10 April 2014.
On 22 April 2014 there were transferred into Safin's solicitors' client account the funds required to pay the rent and service charge arrears and the on account costs due under the consent order. There was a subsequent payment of a small sum in respect of intereset.
On 26 April 2014 District Judge Langley made an order suspending Safin's warrant of possession pending the oral hearing of the defendant's application of 5 March 2014.
On 17 July 2014 the defendant served the building regulations and electrical certificates required by paragraph 2(b)(ii) of the consent order.
The defendant's application was heard by Judge Mitchell on 23 July 2014. At the start of the hearing the defendant abandoned the application to set aside the consent order...
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