Interlocutory issue — Petrol filling station — Exclusive supply/purchase covenants — Tenant buying petrol from third party in breach of covenant — Tenant obtaining ex parte injunction against landlord on landlord’s re-entry — Whether tenant can retain an injunction preventing his landlord from disturbing his quiet enjoyment while remaining in breach of covenant — Judgment for landlord
The respondent was the tenant of Woodlands Service Station, 140 Fleetwood Road North, Thornton Cleveleys, Lancashire, under a lease of October 1 1990 from Amoco, assigned to the appellant landlord with effect from August 1 1990. The respondent covenanted, inter alia, to buy fuel exclusively from the landlord. The respondent’s tenancy continued under the provisions of the Landlord and Tenant Act 1954 Part II. In late 1994 the respondent commenced purchasing third-party motor fuels in breach of covenants under the lease (ie, exclusive supply/purchase covenants). On September 12 1995 the appellant decided to prevent further breaches and to forfeit. The appellant stopped accepting rent and served a section 146 notice. The respondent’s solicitors replied to the notice asserting discriminatory pricing/acquiescence. On October 2 1995 the respondent again ordered third-party petrol. The following day the appellant re-entered. The same day the respondent obtained an ex parte injunction from Blackpool County Court that the appellant be restrained from disturbing the respondent’s quiet enjoyment of the premises. On October 13 1995 the injunction was renewed pending the hearing of an intended application for relief or forfeiture. This interlocutory injunction was the subject of the appeal. The respondent had put two defences before the court. First, the court found that the respondent had no arguable case by claiming that the applicant waived the right to re-enter. Second, it was argued that the respondent had an arguable case for relief of forfeiture or for an injunction. The applicant claimed that there were two limbs to this proposition: first, that compliance with the covenants must be a minimum requirement for relief; second, there was the allegation of discriminatory pricing to be answered. The applicant applied to discharge the interlocutory injunction.
Held Judgment for the landlord.
1. As there was no evidence to support the allegations of discriminatory pricing there was no reason to continue the injunction.
2. As the respondent was unwilling to give an undertaking to buy petrol from the applicant and proposed to act in breach of covenant it was impossible to grant relief from forfeiture. An injunction would permit the respondent to continue in breach of contract.
Anthony Elleray QC (instructed by Ashley Silver) appeared for the appellant landlord; the respondent appeared in person.
