West Country Cleaners (Falmouth) Ltd v Saly
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DANCKWERTS,LORD JUSTICE WINN |
| Judgment Date | 19 July 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0719-1 |
| Court | Court of Appeal |
| Date | 19 July 1966 |
[1966] EWCA Civ J0719-1
In The Supreme Court of Judicature
Court of Appeal
(From: His Honour Judge Chop - Penzance County Court)
Lord Justice Sellers
Lord Justice Danckwerts and
Lord Justice Winn
Mr. G.G. MACDONALD (instructed by Messrs. Gregory, Rowcliffe & Co., Agents for Messrs. Peter, Bray, Harries & Davles, Redruth) appeared on behalf of the Appellant (Defendant).
Mr. J. T. PLUME (instructed by Messrs. Simmons & Simmons, Agents for Messrs. Daniell & Thomas, Camborne) appeared on behalf of the Respondents (Plaintiffs).
(without calling upon Counsel for the Appellant to reply)
I will ask Lord Justice Dancewear' give the first judgment.
This is an appeal from a judgment dated the 23rd March, 1961, of His Honour Judge Chope at the Penzance County Court which relates to certain property known as 31a Fore Street, St. Ives, in the county of Cornwall. It arises in respect of an option contained in a lease to apply for a further term of seven years. The date of the lease was 27th January, 1951, and it was a lease for fourteen years from the 28th January, 1951" which accordingly would expire in January, 1965.
I should refer to certain clauses of the lease. Clause 2 sub-clause 3 provided as follows) "At all times during the said term to keep the whole of the inside of the said premises (including all windows and the glass thereof) locks doors and fasteners and the sanitary and water apparatus thereof in good and tenantable repair damage by fire excepted and to renew or replace any parts thereof needing renewal or replacement and the same in such good and tenantable repair deliver up to the Lessor at the expiration or other sooner determination of the said term". That plainly is a general covenant to repair and deliver up in repair.
The next sub-clause, sub-clause 4, is material. "At least once in each three years of the said term and more frequently if and when necessary and in the last year of the said term to paint with at least two coats of good oil colour and paper and whitewash all such parts of the inside of the said premises as have usually been painted papered and whitewashed".
There was a condition for re-entry in case of failure to pay rent or failure to observe the covenants in the lease in very much the usual terms.
Then in clause 4 is the material provision about which thie dispute revolves. Clause 4 sub-clause 3: "If the Lessees shall be desirous of renewing this Lease (except this presentsub-clanse thereof) for a further tern of seven years and shell give to the Lessor twelve months notice in writing before the expiry of this demise then the Lessor will providing all covenants herein contained have been duly observed and performed grant to the Lessees a further term of the demised premises for seven years from the expiration of this Lease at the same rent and subject to similar covenants and conditions as herein expressed but excluding this option for renewal".
Notice to exercise the option was given on the 13th September, 1963; but the appellant, the landlord, Mrs. Saly, has refused to grant a further lease, on the ground that the tenants are in default as regards performance of the covenants contained in the lease.
The facts appear to be that the premises were kept in a fair decorative state of repair but the ceiling had not been painted as apparently it would have to be painted in compliance with clause 2 (4) of the lease, and no painting was done in the last year of the term. As against that, it was argued that the test is not at the termination of the term as regards the condition of the premises but at the date when the notice was given. It seems to me that even then it is impossible to deny that there was a breach of the covenant to paint the ceiling, for instance, at the end of every three years.
But it was argued before the learned County Court judge and accepted by him that there had been a waiver or estoppels in respect of the breaches of covenant of which the landlord complains. The evidence upon that is, however, it seems to me, not sufficient to create any waiver or estoppels, and in my opinion in that respect the learned County Court judge...
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...to acceptance before the plaintiff could invoke the rights set out therein. He relied on West Country Cleaners (Falmouth) Ltd v Saly [1966] 3 All ER 210. But I do not think that case is of much assistance. There the tenant was given an option to extend the lease provided `all covenants (the......
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