The owner of Manchester music venue the Factory has failed in a bid to obtain rent relief for seven venues after an arbitrator ruled the applications had been filed too late.
Barry Denyer-Green, an arbitrator at Falcon Chambers Arbitration, ruled that entrepreneur Aaron Mellor had not successfully filed his paperwork in time for the 23 September 2022 cut-off date.
Falcon Chambers Arbitration is an independent arbitration panel empowered by the government to reduce or uphold commercial rent arrears generated during the Covid-19 pandemic. The decision was given to the parties involved last month.
The case was brought by Aaron Mellor, the chief executive of nightclub operating company Tokyo Industries, which counts FAC251, otherwise known as the Factory, among its venues. Formerly the headquarters of independent record label Factory Records, it is co-owned by Joy Division and New Order co-founder Peter Hook.
According to the decision, Mellor said he e-mailed Falcon Chambers with the seven applications in time, on 22 September, and also mailed hard copies on the same day. However, the chambers did not receive the e-mails or hard copies until after the deadline date.
The arbitrator decided to use the Factory application as a test case to decide whether he should find that all the applications were filed late.
Although Mellor provided evidence from his outbox that he e-mailed the chambers in time, there is no evidence that they were received. On 27 September, Mellor resent the documents via e-mail, noting that he had received a “mail sending error” for his earlier e-mail.
The arbitrator said that “on the balance of probabilities” the e-mail was not received on time.
As for the hard copies, while they arrived late, Mellor had proof they were sent before the cut-off date. He argued that the Recorded Delivery Service Act 1962 means that the chambers should have treated them as delivered on time. However, the arbitrator rejected this argument as Mellor had not sent the documents using Recorded Delivery.
“I have decided that the purported reference by the applicant of a dispute between the applicant and the respondent was not made before the expiration of the time limit under the 2022 Act,” the arbitrator said in conclusion.
In the matter of an arbitration under the Commercial Rent (Coronavirus) Act 2022 and in the matter of a purported application
FAC 251 Ltd and Zecol Ltd (applicant) v Silver Pagoda Realty Group Ltd (respondent)
Arbitrator Barry Denyer-Green
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