Vendor and purchaser — Agreement to assign lease — Premises used as licensed restaurant — Licence by landlord required for assignment — Provision in agreement that if landlord did not grant a licence to assign within three months from the date of the agreement the purchaser ‘shall vacate the premises’ — The assignee had been allowed into possession of the premises in accordance with a requirement of the agreement, but the landlord’s licence had not been granted within the stipulated time — Whether assignor was entitled to dispossess assignee as a trespasser — Appeal from decision of Sir Douglas Frank QC, sitting as a deputy judge of the Queen’s Bench Division
assignment agreement incorporated the National Conditions of Sale and Condition
8 of the latter provided that a purchaser let into occupation would be a
licensee and that he would give up the property on discharge or rescission of
the contract or on the expiration of seven days’ or longer notice given by the
vendor — As mentioned above, the assignment agreement provided that the
purchaser ‘shall vacate the premises’ in the event of the landlord not granting
a licence to assign within three months of the date of the agreement (clause
7(d)) — The inconsistency between these two provisions created problems — The
assignor, exasperated by the delay in the production of the landlord’s consent
and the completion of the assignment, dispossessed the assignee by changing the
locks on the premises, thereby effectively excluding the assignee — In due
course the latter recovered possession and the transaction was completed, but
he sought damages for his temporary period of dispossession — Sir Douglas Frank
QC held that, in view of the failure to observe the three months’ time-limit
and the mandatory words ‘the purchaser shall vacate the premises’ in the
agreement, the assignee had become a trespasser; and he dismissed the claim for
damages
the members of the court were in agreement that this decision was wrong,
although there were some differences in the manner in which they expressed this
view — Beldam LJ held that clause 7(d) of the agreement had to be construed in
the light of its purpose and together with the incorporation of condition 8 of
the National Conditions — The word ‘shall’ in the clause should not be
construed in a mandatory sense as in a statute but in a common-sense way to
give effect to the intentions of the parties — The appellant (the assignee) was
entitled to at lease seven days’ notice if his licence was to be terminated —
Nourse LJ held that clause 7(d) could only be reasonably construed as giving
the purchaser a power to rescind the contract if the landlord’s consent to the
assignment could not be obtained within the three-month period — This meant
construing ‘shall vacate’ not as automatic rescission but as meaning ‘shall be
entitled to vacate’ or simply ‘may vacate’ — Purchas LJ considered Sir Douglas
Frank’s construction as wholly contrary to the spirit and purpose disclosed in
the other provisions of the agreement — The true effect of clause 7(d) was to
preserve the obligation of the appellant to carry on the business for at least
three months in order to protect the position of the respondent even if the
licence to assign had not been forthcoming; but that thereafter the appellant
should have rights to withdraw from the agreement equivalent to those enjoyed
by the respondent — This meant that after the word ‘shall’ in clause 7(d) the
words ‘be entitled to’ must be implied; these words were better than
substituting the ambiguous word ‘may’ for ‘shall’ — The appeal would be allowed
and case remitted for question of damages to be tried, if necessary
No cases are
referred to in this report.
This was an
appeal by the plaintiff, Ahmed Kamel Balabel, from the decision of Sir Douglas
Frank QC, sitting as a deputy judge of the Queen’s Bench Division, who held
that the plaintiff was not entitled to recover damages for his temporary
dispossession from the premises at 17-18 New Bond Street, London W1, where he
is the proprietor of the club and restaurant known as ‘La Ronde’. The defendant
(respondent to the present appeal) was the previous lessee of the premises,
Aziz Mehmet.
Owen Rhys
(instructed by Howard Kennedy) appeared on behalf of the appellant; Peter
Susman (instructed by Berger Oliver & Co) represented the respondent.
Giving the
first judgment at the invitation of Purchas LJ, BELDAM LJ said: Mr
Balabel, the appellant, is the proprietor of a club and restaurant known as ‘La
Ronde’ at 17-18 New Bond Street, London W1. He acquired the premises on June 18
1982 after a prolonged period of negotiation which began in October 1981. At
that time the respondent, Mr Mehmet, was the lessee of the premises at which he
ran a club and restaurant known as ‘The Celebrity Club’. The respondent held
the premises pursuant to the terms of a lease made between himself and the
lessors, Air India, for the term of 14 years from June 1 1970. Under the terms
of that lease the respondent had covenanted to use them as a licensed
restaurant, to keep them open during all the time allowed by law and to use his
best endeavours to keep up and extend the business at the premises. He further
covenanted to carry on the business there in such a way that he did not
jeopardise the right to run a club there or the licence.
The lease also
contained a covenant in the usual terms against assigning the interest of the
respondent in the premises without the landlord’s previous consent. The lessors
reserved in the usual terms a right of re-entry if the respondent failed to
perform the covenants or if the licence of the premises should be forfeited or
withheld.
On October 5
1981 the appellant entered into an agreement to purchase the unexpired portion
of the term of the respondent’s lease with Air India for £260,000, of which
£50,000 was to be paid as a deposit. By the terms of this agreement completion
was to take place on or before November 2 1981. It also included the following
terms:
— THE
Purchaser shall immediately take possession of the premises and carry on
business there on the following terms and conditions:–
(a) The Purchaser will provide such references
as may be required by the Landlords of the premises and in the event of the
Purchaser requiring that the leasehold interest of the premises shall be
transferred into the name of any person or entity other than himself then he
shall procure that such person or entity shall give to the Landlords such
references as they may require in respect of such person or entity.
(b) In the event that the proposed assignee of
the premises shall not be able to provide sufficient references for the
satisfaction of the Landlords . . . the Purchaser shall procure for the
Landlords such guarantee or guarantor or such cash deposit as the Landlords may
reasonably require . . .
(c) The Purchaser shall procure that the
assignee shall enter into such form of Licence as the Landlord may require . .
.
(d) In the event that the Landlord shall not
grant a licence to assign within three months from the date hereof the
Purchaser shall vacate the premises and leave them in such condition as they
presently are (subject only to fair wear and tear) and shall be entitled to
reimbursement of its deposit of Fifty Thousand Pounds (£50,000) as aforesaid
less
i) £2,000 being the
option price originally paid by the Purchaser . . .
ii) such actual cost as the
Vendor shall have incurred by way of irrecoverable payment to the Landlords . .
. as a result of allowing the Purchaser to enter into possession as from the
date of this contract but prior to and in anticipation of a grant of Licence to
Assign by the Landlords.
8. THE Vendor
will use his best endeavours to ensure that the Landlords will grant the
Licence to Assign the premises to the Purchaser . . .
9. WHERE the
same are not inconsistent with or varied by these presents and are applicable
to a sale by private treaty the National Conditions of Sale (19th Edition)
shall be deemed to be incorporated herein and there shall be substituted . . .
the period of 14 days instead of 28 days in Clause 22(2) of the National
Conditions of Sale.
There seems
little doubt that the inclusion of clause 7 in the agreement was in recognition
of the importance in the lease of the continuous occupation of the premises and
the running there of a licensed restaurant and club.
By November 3
two references had been provided to the respondent’s solicitor, who in turn
passed them on to the landlord. The landlord’s solicitors sought certain
assurances about the use of the club and about the appellant. However, early in
December some difficulties arose because the appellant was proposing that the
club should be run by a company, Marchcoin Ltd, which was a new company, and
the question then arose about the ability of this company to fulfil the
requirements of the lease. Not unnaturally the respondent was anxious that
matters should be completed. By December 22 1981 a draft licence to assign had
been received by the respondent’s solicitors and they forwarded it for approval
to the appellant’s solicitors. On that day they wrote to the appellant’s
solicitors:
It is
therefore now clear that the Licence to Assign is to be granted and there is no
reason for any further delay in completing this matter and we accordingly call
upon you to complete the same in accordance with the terms of the contract and
the statement of monies already delivered regarding apportionments.
However,
further difficulties arose. The appellant, pursuant to the provisions of clause
7, had taken possession of the premises and was running a licensed restaurant
and club there. On January 4 1982, which would have been the last day of the
three-month period referred to in clause 7(d), the appellant’s solicitor (who
had been ill) wrote to the respondent’s solicitor raising a question about the
need for the appellant to deposit a sum of £6,000 with Air India as a condition
for the grant of the licence to assign. The respondent’s solicitors replied on
January 5, and repeated that they were now calling on the appellant to complete
the matter without further delay.
On January 8
1982 the respondent’s solicitors reminded the appellant’s solicitors that under
the terms of the agreement interest was accruing because the licence to assign
was quite clearly available and, unless the appellant dealt with the draft
licence without delay, the respondent could reasonably claim such interest
under the terms of the contract.
There was a
meeting between the appellant and his solicitor and the respondent’s solicitor
on January 20 1982. During this meeting it was clear that the appellant was
prepared to go ahead with the purchase. The respondent’s solicitor made it
plain that there was no question of allowing any further time.
On the
following day the respondent’s solicitors reminded the appellant’s solicitors
that the time for completion in the notice to complete had expired.
On January 21
1982 the respondent’s solicitors wrote again to the appellant’s solicitors and
sent a copy to the appellant stating that, because the 14-day period given by
the notice to complete on December 22 had expired, the appellant was in breach
of the contract and that accordingly the respondent would take such legal steps
as were necessary.
However, no
action was in fact taken though the parties continued through their solicitors to
discuss the position. On January 26 1982 the respondent’s solicitors gave a
further notice to the appellant’s solicitors to complete the contract in
accordance with condition 22 of the National Conditions of Sale as amended by
clause 9 of the agreement. They added:
The purchaser
is in breach both because of Clause 7(c) of the agreement of the 5th October to
which we have already referred you and because of the obligations under the
National Conditions regarding supplying the necessary information etc, in
respect of the proposed Licence to Assign.
Throughout
these negotiations the respondent and his solicitors were at all times aware
that the appellant was continuing in occupation of the premises and carrying on
the business at them. The earliest date on which the 14-day period for
compliance with that notice would have expired was February 10.
By this time,
however, in the words of Mr Susman, who has appeared before us on behalf of the
respondent, the respondent had become exasperated and on February 4 he went to
the premises, changed all the locks and effectively excluded the appellant from
them. On the following day the appellant commenced proceedings in the Chancery
Division to recover possession of the premises and in due course, on February
9, after the parties had agreed, he succeeded in doing so.
The assignment
of the lease and the agreement to purchase was eventually completed on June 18
1982 and the following month the present proceedings were commenced by the
appellant. The action was heard by Sir Douglas Frank QC (sitting as a deputy
judge of the Queen’s Bench Division) on July 6 1988. He held that the appellant
was not entitled to recover damages because, as he construed the agreement, the
licence granted to the appellant to go into possession of the premises was for
three months and no more and that when that three months expired the plaintiff
became a trespasser. He rejected the argument that the licence was determinable
only on reasonable notice being given, though he said he would have acceded to
that proposition if the licence had not been expressed to be for a time
certain. He added:
. . . Had
this agreement been silent as to how long the plaintiff could be allowed to use
his licence to remain on the premises then I would have no hesitation in
holding that he would have been entitled to 7 days or more notice for him to
leave. But it is not, it is one that expires and is only for three months.
The learned
judge further considered whether a case could have been made out on waiver
having regard to the fact that the respondent had served notice to complete
under the contract, but he rejected the argument because there was no evidence
that the respondent had waived his right to require the appellant to leave at
the expiry of three months. Consequently he held that the appellant’s claim
failed.
Before us both
parties agreed that it was first necessary for the court to construe the
agreement of October 5 1981. The National Conditions of Sale (19th ed), in so
far as they were not inconsistent with the terms of the agreement, were
incorporated into the agreement by clause 9. The relevant provisions are:
condition 8: Occupation pending completion; condition 10: Vendor’s right to
rescind; condition 11: Existing leasehold; and condition 22: Special notice to complete.
Condition 8
provided:
(1) If the purchaser (not being already in
occupation as lessee or tenant at a rent) is let into occupation of the
property before the actual completion of the purchase, then, as from the date
of his going into occupation and until actual completion, or until upon
discharge or rescission of the contract he ceases to occupy the property, the
purchaser shall —
(i) be the licensee and not
the tenant of the vendor
(ii) pay interest on the
remainder of the purchase money at the prescribed rate
(iii) keep the property in as
good repair and condition as it was when he went into occupation
(iv) pay, or otherwise
indemnify the vendor against all outgoings and expenses (including the cost of
insurance) . . .
(v) not carry out any development
or make any change in the use of the property
(2) Upon discharge or rescission of the contract,
or upon the expiration of seven days’ or longer notice given by the vendor or
his solicitor to the purchaser or his solicitor in that behalf, the purchaser
shall forthwith give up the property in such repair and condition as aforesaid.
Condition 10
gave the vendor the right to rescind the contract if the purchaser should
persist in an objection to the title and upon rescission the vendor was bound
to return the deposit.
Condition 12,
so far as it is relevant to this agreement, contained in subpara (v) the usual
term that the sale was subject to the reversioner’s licence to assign being
obtained where necessary. It included the purchaser’s obligation to supply
information and references that might reasonably be required of him, the
obligation of the vendor to use his best endeavours to obtain the licence, but
if the licence could not be obtained it gave to the vendor the right to rescind
the contract on the same terms as if the purchaser had persisted in an
objection to title.
The first
question therefore which has to be considered is the extent to which these
provisions were inconsistent with the provisions of clauses 7 and 8 of the
agreement of October 5. Mr Susman contended that clauses 7 and 8 were intended
to exclude the provisions of conditions 8 and 11 and so were inconsistent with
them. So, he argued, clause 7(d) made it clear that the only period for which
any licence to occupy the premises was given to the appellant was for a period
of three months and that thereafter it imposed an obligation on him to leave
the premises and if he did not do so he remained there as a trespasser.
Such a
construction, it seems to me, ignores completely the purpose behind the
inclusion of clause 7 in the agreement. As I have set out earlier, the
respondent under the terms of the lease with Air India was required to use the
demised premises as a licensed restaurant and to manage and conduct the
business in such a way that
the right to enter the premises but required him to carry on the business there
and it was clearly contemplated by the parties that he should do so. Mr Susman
conceded in argument that it was important that the appellant should not be
able to claim that these arrangements amounted to the creation of a
relationship of landlord and tenant and if it had been intended that clause 7
should replace the provisions of condition 8 of the National Conditions of Sale
there would undoubtedly have been included some statement equivalent to the
statement in condition 8 of the National Conditions of Sale that the appellant
should be the licensee and not the tenant of the respondent. Moreover, clause
7(d) was clearly intended to supplement condition 11(v) of the National
Conditions of Sale and to give the appellant the right to rescind the contract
if the consent of the landlords to the assignment was not obtained within three
months but, of course, if he did so, he would have to vacate the premises.
The
construction the court is asked to put upon clause 7(d) requires that the word
‘shall’ is to be construed as if it appeared in a statute and created a
mandatory duty on the appellant to leave the premises. In other places in the
agreement the word ‘shall’ is used interchangeably with ‘will’, merely
indicating a future tense. The clause has to be construed in a common-sense way
to give effect to the intention of the parties gleaned from the whole of the
agreement and the language used.
I would
therefore hold that clause 7 of the agreement of October 5 had to be construed
together with the National Conditions of Sale incorporated and accordingly that
when the appellant went into occupation of the premises he went in as a
licensee. And I would hold that he was entitled under the provisions of
condition 8 of the National Conditions of Sale to at least seven days’ notice
if that licence was to be terminated. If it had been an issue in this case I
would also have been prepared to hold that, having regard to the obvious
purpose for which the appellant entered the premises, there was an obligation
on his part not to leave the premises without giving reasonable notice to the
respondent.
Under the
provisions of condition 8 of the National Conditions of Sale the appellant
would remain a licensee of the respondent from the date of his going into occupation
until actual completion or until upon discharge or rescission of the contract
he ceased to occupy the property. The contract in this case was neither
discharged nor rescinded prior to February 4 1982, nor was any notice given to
the appellant to terminate his licence, and consequently I would hold that he
was entitled to succeed on his claim on that simple ground.
If I were
wrong in my conclusion about the true meaning of clause 7(d), I would
nevertheless have taken the view that the words ‘shall vacate the premises’
were to be read in the context of condition 8 of the National Conditions of
Sale so that the requirement of notice applied. It would not be sensible to
construe the words ‘shall vacate the premises’ as requiring the appellant to
leave if, for example, it was confidently expected that the consent would be
forthcoming within a week or two. Moreover, since the whole purpose of the
appellant’s going into possession was for him to ensure that the club continued
to prosper, it would not make business sense to hold that the words had the
effect contended for by the respondent.
Mr Susman also
argued that notwithstanding that the appellant was required to vacate the
premises, the other provisions of the agreement remained on foot and the
parties were not discharged by the failure of the landlord to give his consent
within three months. If the appellant was required to leave the premises but
the contract remained in existence, the premises would either remain empty
until completion or the respondent would have had to recommence business at the
premises himself with the possibility that after a week or two the contract
might be completed and the appellant would once again move in to take over the
premises. I cannot impute any such intention to the parties.
For these
reasons, I would hold that the construction placed upon clause 7(d) by the
learned judge was wrong. But, even applying his construction to the words so
that they did have the effect of terminating the licence of the appellant to
remain in the property, there still remains the question whether on February 4
1982 it was open to the respondent to treat him as a trespasser in the
premises. The appellant had continued to run the club at the premises and to
make himself liable for the outgoings in accordance with condition 8 of the
National Conditions of Sale. The respondent had not offered to return the
deposit in accordance with the appellant’s entitlement if the terms of clause
7(d) were being relied upon. He had given notice to complete on two occasions
in reliance on the terms of condition 22 of the National Conditions of Sale. At
no time did the respondent’s solicitors suggest that the appellant was a
trespasser in the premises. The whole conduct of the respondent would have led
the appellant to believe that his licence to occupy the premises continued in
force. In these circumstances I would hold that the respondent, having led the
appellant to believe that he was content for him to remain in the property and
to continue to run the business, had either waived the right to treat him as a
trespasser or was estopped from doing so. For these reasons I would allow the
appeal and would remit the case for the question of damages to be tried, if
necessary.
Agreeing that
the appeal should be allowed, NOURSE LJ said: Since I have arrived at
this conclusion by a rather different route from that which has been followed
by Beldam LJ, I will state my reasons in my own words.
On a literal
reading, clause 7(d) of the agreement dated October 5 1981 imposes an obligation
on the purchaser to vacate the premises in the event of the landlords not
granting a licence to assign within three months from that date. But it also
confers on him a correlative entitlement to reimbursement of the £50,000
deposit less two deductions. To my mind the semblance of those provisions is
wholly of rescission, a state of affairs in which the rights of the parties
are, so far as possible, restored to what they were before the contract was
entered into. Indeed, it is difficult to think what other badge could be pinned
on provisions in a contract for the sale and purchase of land which provided
both for the purchaser’s giving up of the possession which he had taken before
completion and for the reimbursement of his deposit.
The unusual
feature of the provisions is that they are expressed in the language of
obligation and not of permission. If read literally, they would have the
unusual, I might say extraordinary, result of automatically rescinding the
contract in the event of the landlords’ not granting a licence to assign within
the stated period. In spite of Mr Susman’s submissions to the contrary, I can
see no reason why the parties to this agreement should be taken to have
intended that it should be capable of having that result. So I look to the
other material provisions of the agreement in order to see whether they throw
any light on this question.
By clause 5 it
was provided that completion would take place on November 2 1981. By clause 8
the vendor agreed to use his best endeavours to ensure that the landlords would
grant a licence to assign the premises to the purchaser or to such other person
or entity as the purchaser might nominate. Clause 9 incorporated the National
Conditions of Sale (19th ed) where the same were not inconsistent with or
varied by the agreement and were applicable to a sale by private treaty. By
condition 11(5) of those conditions it was provided, so far as material, that
if the landlords’ licence could not be obtained, the vendor might rescind the
contract on the terms set out in condition 10(2).
The combined
effect of those provisions was that the vendor was bound to use his best
endeavours to ensure that the landlords would grant a licence to assign, but so
that if it could not be obtained he should be at liberty to rescind the
contract. In the light of those provisions clause 7(d) of the agreement can
only be reasonably construed so as to give the purchaser a power to rescind the
contract if the licence cannot be obtained within the three-month period. It
was perfectly reasonable for the parties to intend that the purchaser should be
able to relieve himself of further liability under the contract if the vendor
had not obtained the licence by the end of the two months following the
contractual date for completion, especially in the light of the purchaser’s
otherwise continuing obligation to remain in possession and carry on business
under the opening words of clause 7. On the other hand, the parties could not
reasonably have intended that there should be an automatic rescission of the
contract if the licence was not obtained. Equally, it was unnecessary for
clause 7(d) to give the vendor the power to rescind, because he already had one
under condition 11(5) of the National Conditions of Sale.
I therefore
conclude that the effect of clause 7(d) was to give the purchaser a power to
rescind the contract in the event stated. I appreciate that this view involves
reading the obligatory ‘shall vacate’ as meaning the permissive ‘shall be
entitled to vacate’ or simply ‘may vacate’. That construction would not often
be justified, but it is sometimes necessary to read ‘shall’ as ‘may’ and here
it is the only way in which a sensible role can be given to clause 7(d) of the
agreement.
These reasons,
which substantially reproduce the primary argument of Mr Rhys on his behalf,
are sufficient to dispose of this appeal in favour of the plaintiff. However,
even if Mr Susman had been correct in saying that the provision for vacation of
the premises was obligatory, that would not have enabled the defendant to
succeed. Let it be supposed that the defendant did have a right to evict the
plaintiff on or after January 5 1982. It is clear that that right was matched
by a correlative obligation to reimburse the plaintiff with the £50,000 deposit
less the two deductions. Mr Susman has submitted that the defendant was
entitled to evict the purchaser without actually tendering repayment of the net
deposit beforehand. I am prepared to assume, although I do not decide, that
that is correct. But what the defendant certainly could not do was to evict the
plaintiff in reliance on clause 7(d), while altogether denying his entitlement
to reimbursement under one and the same provision. That that is what the
defendant sought to do is the only tenable view of the events and
correspondence which took place between January 4 and February 4 1982. In
seeking to compel completion of the contract, he was effectively asserting his
right to retain the deposit, thereby denying the plaintiff’s entitlement to its
return.
Accordingly,
even on the assumption that he had one, the defendant did not enforce a right
to possession under clause 7(d) and he cannot now be treated as if he had
enforced one. On either view, the defendant’s only right to possession was
under condition 8 of the National Conditions of Sale, which clearly applied
except in so far as the defendant was entitled to proceed and did proceed under
clause 7(d). The contract was neither discharged nor rescinded and the
defendant did not give the seven days’ notice required by condition 8(2). His
eviction of the plaintiff was therefore unlawful.
For these
reasons I agree that the decision of the learned judge cannot be sustained.
Also agreeing,
PURCHAS LJ said: I add only a few words of my own on the two central
issues. The context in which these must be considered has already been set out
in the judgment of Beldam LJ. Essentially they are the terms of the lease
between the respondent and Air India, the agreement between the appellant and
the respondent of October 5 1981, and the terms of a draft licence that was
offered by Air India at the material time. Clause 7 of the agreement imposed
obligations on both appellant and respondent, the former to take possession of
the premises and carry on the business there to protect the position of the
respondent, and upon both to procure the licence agreement to be offered and
granted by Air India.
Within these
provisions the first question is: What role has clause 7(d) to play? Sir Douglas Frank QC held that it was
effective to cause the licence to occupy the premises under condition 8 of the
National Conditions of Sale to determine absolutely on the expiration of three
months from the date of the agreement — that is the date three months from
November 2 1981 — if the licence to assign had not come into existence. This
construction is so wholly contrary to the spirit and purpose disclosed in the
other provisions of the agreement and the National Conditions of Sale that I
cannot accept that that was the intention of the parties, namely that, whatever
the circumstances were provided that the licence to assign had not been
forthcoming, the licence to occupy should absolutely determine without more.
In my
judgment, the true effect of clause 7(d) was to preserve the obligation on the
appellant to carry on the business for at least three months, as I say, in
order to protect the position of the respondent even if the licence to assign
had not been forthcoming up to or during that period but that, thereafter, the
purchaser (the appellant) should have rights to withdraw from the agreement
upon terms equivalent to those enjoyed by the respondent. This, of course,
means that after the word ‘shall’ in clause 7(d) the words ‘be entitled to’
must be implied, that is that the right granted by 7(d) is not an absolute
obligation to vacate the premises but a right to vacate the premises upon
appropriate terms in the sense that I have already set out. This may be thought
to be an elaborate implication but, in my judgment, it is necessary to achieve
a purposive construction of the agreement as a whole. As my lord, Nourse LJ,
has said, the same effect could really be achieved by substituting the word
‘may’ for ‘shall’, but the word ‘may’ carries with it a degree of ambiguity and
that exercise would, in my judgment, really be one merely of semantics.
I can deal
with the second issue very shortly indeed. Even if the appellant’s licence had
determined absolutely by the effluxion of time in January, in my judgment it
would be unconscionable to allow the respondent to take possession of the
premises without some appropriate prior notice in view of the positive actions
to achieve completion which the respondent had taken since the expiry of the
licence on the hypothesis, which I do not accept, that it did expire by effluxion
of time after three months.
For those
reasons I also agree that the appeal must be allowed.
The appeal
was allowed with costs of appeal and in the court below to be paid by
respondent; leave to appeal to House of Lords was refused.
