Vendor and purchaser–Agreement for sale of leasehold interest–Both parties locked into an unhappy situation–Purchaser entered into possession before completion of assignment–Withholding of consent to assignment and change of use by landlord–Purchaser unable to start trading–Vendor unable to obtain rent–Judgment for damages in favour of purchaser reversed by Court of Appeal–No repudiation of contract by vendor–Vendor entitled to rent and mesne profits
were that the vendor, the appellant, had himself in 1983 bought the residue of
a lease of commercial premises, expiring in 1991, and tried to start a bakery
business there–Unfortunately it failed after about two years and he put the
property back on the market–The lease contained a covenant against assignment
etc without the landlord’s consent and a restriction of use to that of a baker
and confectioner, grocers and food store–The purchaser, the
almost opposite the appellant’s premises, from another landlord, but found it
too small for her needs–She wished to establish a business with a
word-processing agency in the back part and a gift shop in the front–It would
suit her to transfer her business to the appellant’s premises, which were more
than twice as large–The consent of the appellant’s landlord to the assignment
and change of use would, of course, be necessary–She made an offer for the
appellant’s lease which was accepted subject to contract: in fact by the time
of the trial in 1990 both parties agreed that there was a binding contract of
sale–The respondent entered into possession of the appellant’s premises on or
immediately after the agreement was made in October 1987
believed that events would move quickly and that the respondent would be
trading by Christmas 1987–The respondent agreed to be responsible for the
instalment of rent which would be due on that date–Matters turned out very
differently–The respondent was not able to start trading and she had not paid
the rent due at Christmas 1987 or any subsequent rent by the time of the trial
in 1990–The central difficulty was that the landlord’s consent to the
assignment and change of use was not forthcoming despite the efforts of both
appellant and respondent to obtain it–The landlord was stalling; it was in his
interest to do so as it might result in the lease being surrendered to him–In
fact the landlord later persuaded the appellant to agree to surrender, a
transaction which was ineffective as the respondent was in occupation–The
result was that the contract of sale was never completed
by the respondent, the plaintiff below, in the county court the assistant
recorder gave judgment in her favour, awarding her damages, at an amount to be
assessed, for breach of contract–It was his view that it was not in the
contemplation of either party that she would be required to pay rent but
prevented from trading–He dismissed the appellant’s counterclaim for rent–It
was the respondent’s case that she had suffered damages in the shape of the
profits which she would have earned if she had been able to carry on her
business on the premises from, say, December 1987, subject to her giving credit
for the rent and rates which she would have had to pay while occupying the
premises
pointed out in the Court of Appeal that in fact she could not have traded in
the premises unless the landlord’s consent had been forthcoming and the
prospects of this were nil in the light of the history of the matter–Therefore,
her damages, if she were entitled to damages at all for an alleged repudiation
of the contract by the appellant, would be merely nominal–The court went
further–There was nothing which the appellant could have done to obtain the
landlord’s consent short of bringing court proceedings for a declaration that
consent had been unreasonably withheld–But the appellant’s obligation to the
respondent was not an absolute obligation to obtain such consent but merely an
obligation to use his best endeavours–In the court’s view there was no
repudiation of the agreement by the appellant and the respondent’s claim for
damages failed–The appellant was, however, entitled to judgment on his
counterclaim for rent and mesne profits
LJ pointed out, the parties here became locked into a situation in which both
suffered loss–It was the respondent’s misfortune to enter the property and
spend money on decorations and stock and so forth before completion of the
assignment of the lease–She had invested too much money to feel able to quit
the property–The appellant had a continuing responsibility for the rent, which
he had to pay for some three years, at £4,250 a year, plus rates and other
outgoings, in return for which he received nothing–Effectually the property was
sterile for this period
allowed with judgment on appellant’s counterclaim
The following case is referred to in this
report.
Stearn v Twitchell [1985] 1 All ER 631
This was an appeal by the defendant,
Andrew Toumazos, from the judgment and order of Mr Assistant Recorder Malcolm
Knott, at Clerkenwell County Court, in favour of the plaintiff, Clare Alison
Fischer, whereby he awarded the plaintiff damages at an amount to be assessed,
in respect of an alleged breach of contract of sale and dismissed a
counterclaim by the defendant. The subject-matter of the dispute was a
leasehold interest in 335 Archway Road, Highgate, London N6.
Lawrence Caun (instructed by Howard
Pallis & Co) appeared on behalf of the appellant; Jeremy Carey (instructed
by Henry Boustred & Sons) represented the respondent.
Giving judgment, DILLON LJ said:
This is an appeal by the defendant in the action, Mr Andrew Toumazos, against
an order made by Mr Assistant Recorder Malcolm Knott in the Clerkenwell County
Court on November 23 1990 at the end of the trial of action.
The appeal raises issues of some
difficulty as to the consequences in law, in the events which have happened, of
the parties having entered, on October 23 1987, into an informal contract for
the sale by the defendant to the plaintiff, Miss Clare Fischer, of certain
leasehold premises at 335 Archway Road, Highgate, London N6.
Before I explain the issues, I would deal
with one procedural point. The judge’s order was that there be judgment for the
plaintiff with damages to be assessed and that the defendant’s counterclaim be
dismissed. On the first day of the trial, November 6 1990, the judge ruled, on
the plaintiff’s application, that there be a split trial. He would decide
liability at the trial, and if liability were established there would be an
inquiry to determine quantum of damages. The defendant appeals against
that ruling. It was submitted for him that the ruling was wrong in principle
and that the consequence should be that the plaintiff’s claim should be
dismissed out of court because she was not ready with her evidence as to the
damage she claimed to have suffered. It seems to me that if the judge’s ruling
had been wrong and were to be set aside, the consequence would be a new trial
of the action and counterclaim as a whole which hardly seems desirable. But the
ruling was one which, in my judgment, was plainly within the discretion of the
judge and one with which this court should not interfere.
Indeed, I would go further and say that
the ruling was plainly right. There are so many possible issues in the
proceedings that until they have been resolved it is not possible to decide the
basis on which damages, if payable, should be assessed. Moreover, as the judge
pointed out in his ruling on the application for a split trial, the trial of the
action and counterclaim had been originally fixed for two days, November 6 and
7 1990, but owing to other court business the trial did not begin until about 3
pm on November 6. It was then continued for whole days on November 7, 21 and 22
and judgment was delivered on November 23; had the issue of quantum not
been split off, a considerably longer trial would have had to have been fitted
in.
I turn now to the background from which
the case arises.
The defendant, a Greek Cypriot by origin
who has been resident and in business in this country for very many years,
bought in 1983 the unexpired residue of a term in 335 Archway Road of 21 years
from July 20 1970 under a lease dated July 20 1970. The lease contains the
usual tenant’s covenant not to assign, underlet, share or part with the
possession of the demised premises or any part thereof without the landlord’s
consent which is not to be unreasonably withheld. It also contains a tenant’s
covenant not without the landlord’s consent which is not to be unreasonably
withheld to use the demised premises or any part thereof or suffer the same to
be used for any trade or business whatsoever other than for the business of a
baker and confectioner and as a grocers and food store. The reversion on the
lease was acquired, soon after the defendant’s purchase of the lease, by
another Greek Cypriot, Mr Vasilliou.
The defendant started a bakery business
on the premises but failed by 1985 and he closed it and put the premises on the
market.
The plaintiff acquired from another
landlord in October 1986 a tenancy of a shop at 412 Archway Road, nearly
opposite 335, and she sought to establish there a business of a word-processing
agency in the back part and a gift shop in the front part. The premises at 412
were, however, small — they were referred to at the trial as her ‘little shop’
— and it occurred to her in the late summer of 1987 that it would be
advantageous if she could acquire the lease of the vacant premises no 335, and
transfer her business there. The available space at 335 was more than twice as
large as the available space at 412. She wished in particular to arrange a
speedy assignment of no 335 so that she could open there in time to catch the
Christmas trade.
It seems that the plaintiff made an offer
of £12,000 for 335 which was accepted by the defendant subject to contract, and
at the beginning of October 1987 the usual conveyancing correspondence subject
to contract was opened between solicitors Chalker Smalley of 377 Archway Road
for the plaintiff and Layzells of Muswell Hill Broadway for the defendant.
Both the parties were, however, in a
hurry, the plaintiff because she wanted to open for trading in 335 before
Christmas, and the defendant because he wanted to be relieved as soon as
possible of the burden of the rent of premises for which he had no use. There
were, therefore, further negotiations between the parties, and on October 22
1987 the defendant signed a document in letter form addressed to the plaintiff
which had been prepared by an intermediary, a Mr Martin Osment, and the
plaintiff endorsed her acceptance with the words ‘Accepted with thanks, Clare
Fischer.’
The document is in these terms:
Dear Miss Fischer,
Re: Shop 335 Archway Road, N6
Further to our discussion, I confirm that
I will assign the lease to you upon the following terms:
1
You have my assurance that I have disclosed all the claims against the
property to you to the best of my knowledge. My solicitor will answer any
further enquiries that you may have.
2
I will give you immediate possession at your risk on a licence until the
lease is assigned. My solicitor will prepare the usual form of licence and you
may commence decorating as soon as you have signed this.
3
You will be liable for rates from the date that you deposit furniture
etc in there and for rent from the December quarter day.
4
You will receive all the area currently demised to me under my present
lease from Mr P Vasilliou.
In consideration of the above I will
require from you a premium of £10,750 payable upon assignment. Upon signing the
licence I will require you to deposit 10% being the sum of £1,075 with my
solicitor, which will be deducted from the premium upon completion. Should you
withdraw, then you will be liable for both sides legal costs, otherwise each of
us will pay our own costs. To accept this, please sign and return the copy
which I will then forward to my solicitor for his immediate attention.
Yours sincerely,
Andrew Toumazos
I have no doubt that Mr Osment acted with
the best of good intentions in preparing this document, and, if things had gone
as the plaintiff and the defendant wished, all would have been well.
Unfortunately they did not.
By the time the action came on for trial
in November 1990, both parties were agreed on their pleadings that the letter
of October 22 1987 and the plaintiff’s written acceptance of its terms
constituted a binding contract for sale between the plaintiff and the
defendant. But until shortly before the trial the defendant’s advisers had been
contending that there was merely a step in negotiations and no complete or
binding contract.
Accepting that there was a binding
contract, the judge held that the admitted contract was a contract by
correspondence within section 46 of the Law of Property Act 1925. I do not
agree with that view and neither counsel has sought to support it in the light
of the judgment of Warner J in Stearn v Twitchell [1985] 1 All ER
631, (Stearn and others?) which, in my judgment, was obviously right. Whether
or not the contract was within section 46, however, is not relevant to any of
the determinative issues in this appeal.
Several further points about the
agreement of October 22 1987 are not in dispute.
In the first place, and as the judge
found, the price of £10,750 under the agreement represented a reduction of the
price from £12,000 to £10,000 with an addition of £750 to represent, roughly,
apportioned rent for 335 under the lease for the period from the date of the
agreement until the next quarter day, December 25 1987, when the rent would be
payable.
In the second place, though the agreement
contemplated that the plaintiff would enter the premises when she signed a
licence ‘in the usual form’, no form of licence was ever agreed or signed.
Although the agreement stated that the defendant’s solicitor would prepare the
licence, he invited the plaintiff’s solicitor to do so. The plaintiff’s
solicitor therefore prepared a form of licence, but this was not acceptable to
the defendant’s solicitor, who prepared an alternative form. The matter rested
there.
Had a form of licence been agreed, its
terms might have clarified one of the main issues now outstanding between the
parties, but the absence of a written licence is not crucial. The plaintiff
undoubtedly did enter into possession of 335 on or immediately after October 22
1987 with the full approval of the defendant for the twin purposes of storing
in 335 surplus goods from the little shop at 412 and of redecorating 335 and
making alterations, including the installation of a new fascia, in preparation
for trading there. At the time of the agreement she gave the defendant her
cheque, postdated by a week, for the deposit of £1,075 and also £20 for
permission to use the premises for storage of stock in the intervening week.
The real difficulty which has led to
these proceedings has been that the consent of the landlord, Mr Vasilliou, to
the assignment of the premises, 335, to the plaintiff and to the change of use
which would authorise her to carry on her own business there has not been
forthcoming. It is unnecessary to distinguish between consent to assignment and
consent to change of use; there was never any question of one being granted
without the other. Because the landlord’s consent was not forthcoming, the
agreement has never been completed and the plaintiff has never opened for
trading in the premises, although she remained in possession until the trial in
1990.
Before I set out the facts as to the
landlord’s consent, however, I should deal with the other important question on
this appeal, namely, was the plaintiff liable under clause 3 of the agreement
to pay the rent under the lease from the December quarter day even though she
was not trading in the premises (and similarly was she liable to pay the rates
while she was in rateable occupation even though she was not trading).
She anticipated when the agreement was
made that it would have been completed well before Christmas and that she would
be trading by Christmas. But on her own evidence at the trial her understanding
of the arrangement was that she could not start trading from the premises until
the agreement had been completed and the price had been paid. On the documents
that was also her solicitor’s understanding. She did not pay the Christmas rent
— or any subsequent quarterly instalment of rent up to the trial — because she
was not trading in the premises; it may be that without the profits of trading
she could not afford the rent.
The judge held that it was not in the
contemplation of either party that the plaintiff would be required to pay rent
but forbidden to trade. He therefore concluded that if the defendant had wanted
to impose a condition to that effect it would have been necessary for him to
spell it out much more plainly than it is spelt out in the agreement. He had
said a bit earlier that he would be reluctant to interpret the agreement as
meaning that she was to be liable to pay the rent from December onwards even
though completion had not taken place and she was not permitted to trade,
because he thought that would produce a result which neither party could
possibly have intended.
I would accept that both parties
contemplated that the agreement would be completed before Christmas 1987 and
neither party contemplated the contrary. But the judge has rightly held that
time was not of the essence of the agreement for completion, and no one has
suggested that the agreement was frustrated because the landlord’s consent was
not forthcoming before Christmas 1987.
The task of the court is to apply the
terms agreed in circumstances which had not been contemplated. I am wholly
unable for my part to construe clause 3 of the agreement as rendering the
plaintiff’s liability for rent from Christmas 1987 onwards, and rates, as
conditional on the agreement having been completed or on her having been given
licence to trade in the premises in advance of completion. I am not satisfied
that the licence envisaged in the agreement was to include a licence to trade
in the premises in advance of completion. But, apart from that, the agreement
clearly envisages that the plaintiff would be in occupation of the premises for
her own purposes from very shortly after the date of the agreement, and the
natural corollary of that is that she should be liable to pay the rent and
rates. Moreover, as the price of £10,750 to be paid on completion was to
include the apportioned rent up to Christmas 1987, it would be very surprising
if the liability for the rent at and after Christmas was to be the landlord’s
liability if completion had not taken place before Christmas.
In my judgment, therefore, the plaintiff
was in breach of the agreement in failing to pay the December 1987 instalment
of rent. A
nearly three years until after the trial, without paying any rent, while using
335 for a considerable part of that time to store goods to be offered for sale
in her little shop until after that had to be closed.
I agree, however, with the judge that the
plaintiff’s failure to pay the December 1987 instalment of rent was not a
repudiatory breach of contract. I agree with his reasoning on that point.
I turn, therefore, to the facts
concerning the landlord’s consent.
The plaintiff had known at the time of
the agreement that the landlord’s consent would have to be obtained, and she
would not at any stage have contemplated completing her purchase without that
consent. She did not, however, contemplate any difficulty in obtaining the
consent, since she had been acquainted with the landlord for some 10 years and
had on occasions played chess with him.
The defendant’s experience with the
landlord had been less encouraging, since on two occasions, after he had ceased
trading at 335 and put the premises on the market, potential purchasers had
withdrawn, after solicitors had been instructed, because of dilatoriness on the
part of the landlord in giving his consent. The judge pointed out, however,
that on one of those two occasions the landlord could have had a good reason
for withholding consent because the then purchaser wished to use the premises
as a fish and chip shop.
The purchaser also knew that she would
have to produce references and she did produce references — albeit not until
the middle of November 1987 — to which no objection could reasonably be taken.
These references were sent to the landlord’s solicitors, Pelentrides & Co,
under cover of a letter from the defendant’s solicitors of November 17 1987.
Further references were sent a few days later.
The landlord’s solicitors acknowledged
receipt of the earlier documents by letter of November 19 in which they said
that they would be writing again in early course. They did not, and on December
1 the plaintiff herself wrote directly to the landlord’s solicitors as she
understood that they would be meeting their client, the landlord, that
afternoon. She pressed for an immediate grant of the necessary consents and
stressed the urgency of the matter from her point of view.
The defendant’s solicitors sent a chaser
to the landlord’s solicitors on December 3, to which the landlord’s solicitors
replied, on December 4, that they were obtaining their client’s instructions
and would write again as soon as they were able. The defendant’s solicitors
wrote again to the landlord’s solicitors on December 5. They mentioned the
possibility of an immediate application by the defendant to the county court
should the landlord be unreasonably withholding consent.
On or about December 7, the plaintiff
went herself to see the landlord in his shop about the desired consent. His
wife was present. According to the plaintiff’s evidence at the trial, ‘the
landlord was in his shrugging mood. Referred to not knowing if deal in his
interests. Had to see surveyor or speak to solicitors’. The plaintiff lost her
temper at this attitude and made a comment in the hearing of the landlord’s
wife about the landlord chasing after women. The practical consequence of that
was that the plaintiff and the landlord ceased to be on speaking terms.
On December 9 the landlord’s solicitors,
Pelentrides & Co, wrote to the defendant’s solicitors. By their letter (1)
they asked for unparticularised further financial references for the plaintiff
as assignee; (2) they stated that the landlord’s surveyor had been instructed
to complete a schedule of dilapidations and that the landlord would like the
works completed prior to any proposed assignment; (3) they stated that the
landlord was not prepared to consent to the proposed change of use since it
would entail a significant change in the quality of user, resulting in the
value of the property being depreciated; and (4) they referred to the plaintiff
having abused the landlord during her visit on December 7.
In relation to that letter, the judge
found that it was simply the landlord’s solicitors stalling on their client’s
instructions. I entirely agree. In particular, they did not need further
references at all.
On December 10 the defendant’s solicitors
wrote back formally to the landlord’s solicitors, calling on them to confirm
consent both to the assignment and the change of user, to obviate an immediate
application to the court. The landlord’s solicitors replied on December 15,
stating that they were obtaining their client’s further instructions and should
be writing again as soon as they were able; they never did write again on this
topic.
At some time after the plaintiff’s visit
to the landlord on December 7, the defendant himself visited the landlord to
try to obtain his consent, but he met with the same unco-operative attitude and
achieved nothing. It has been submitted for the defendant that the plaintiff’s
remarks to the landlord on December 7 were so ill-judged and counterproductive
as to amount to a repudiation of the agreement between the plaintiff and the
defendant. I have no doubt, however, having regard to the landlord’s attitude
throughout, that the outcome would have been no different if those remarks had
not been made. The remarks were, in my judgment, not repudiatory, and, as
between the plaintiff and the defendant, they were causative of nothing.
On January 5 1988 the defendant paid to
the landlord the quarterly instalment of rent which the plaintiff had failed to
pay to him at Christmas 1987. At this stage the defendant, on the judge’s
finding, still wanted to sell the premises to the plaintiff. But, obviously, as
matters had developed, the defendant had considerable worries as the landlord
was prevaricating over granting consent to assignment and the plaintiff was not
paying the rent in the absence of the consent.
At the end of January 1988 the landlord
approached the defendant and invited him to surrender the lease for a price.
The defendant agreed to do so. In making this approach the landlord was picking
up an abortive approach with a view to a surrender of the lease which he had
made to the defendant in August or September 1987. As a result of this
approach, the defendant’s solicitors wrote to the plaintiff’s solicitors a
letter of February 4 1988, of which they sent a copy to the plaintiff herself
and in which they required the plaintiff to leave the premises and remove all
her goods within seven days.
The judge held that the making by the
defendant of this agreement with the landlord for the surrender of the premises
and the sending of the letter of February 4 was a repudiation by the defendant
of his agreement with the plaintiff. It plainly was such a repudiation unless
by February 4 the defendant was entitled, in the light of all that had happened
with regard to the landlord’s consent, to call off the agreement without making
any further effort to obtain the landlord’s consent.
But if there was a repudiation by the
defendant on February 4 1988, that repudiation was not accepted by the
plaintiff until the third day of the trial in November 1990. In the meantime,
the plaintiff maintained that the agreement was still on foot and claimed
specific performance. She even obtained at one stage in 1988 a temporary
interlocutory injunction restraining the defendant from evicting her from the
premises. But she continued to refuse to pay any rent and she successfully
opposed an application by the defendant for an order for interim payment of
rent or mesne profits. As the plaintiff remained in possession, the proposed
surrender of the lease by the defendant to the landlord fell through.
It was on the basis of this finding that
the defendant had repudiated the agreement at February 4 1988 that the judge
awarded the plaintiff judgment for damages to be assessed.
It is the plaintiff’s case that the
damages she has suffered are the continuing profits she would have earned if
she had been able to carry on her business on the premises from, say, December
1987, subject to giving credit for the rent and rates she would have had to pay
while occupying the premises. That cannot, however, in my judgment, be right
since she could not and would not have traded in the premises unless the
landlord’s consent had been forthcoming. Her damages must therefore be limited
by the prospects of success in obtaining the landlord’s consent to assignment
and change of use. But, whether the matter is looked at at February 4 1988 or
at the date of the trial in November 1990, those prospects were, in my
judgment, nil in the light of the history of the matter which I have set out.
Therefore, her damages, if she is entitled to damages at all, for a repudiation
by the defendant at February 4 1988, must be merely nominal.
I would, however, go further. I cannot
see that there was anything that the defendant could, as a practical matter,
have done as at February 4 1988 to obtain the landlord’s consent short of
bringing court proceedings for a declaration that the consent had been
unreasonably withheld. But it is common ground that the defendant’s obligation
to the plaintiff was not an absolute obligation to obtain the landlord’s
consent; it was merely an obligation to use best endeavours to obtain the
consent, and it did not oblige the defendant to bring any legal proceedings
against the landlord.
It is said that the landlord’s
solicitor’s letter of December 15 1987 left the door open and should have been
probed by pressure for a definite answer. But I have no doubt that any probing
would merely have produced further evasive answers after further delay —
answers, perhaps, which dilated further on the topics of references,
dilapidations and the proposed change of use. In the light of the landlord’s
approach for a surrender at the end of January 1988 (which may well have been
his objective all along) after all the prevarication that had gone before, nothing
that the defendant did at February 4 1988 could have produced the consent
without court proceedings, and he was entitled, in my judgment, to do no more
to obtain it, to call off the agreement — albeit he did not believe it to be
binding — and to require possession of the premises.
It follows that, in my judgment, there
was no repudiation of the agreement by the defendant and the plaintiff’s claim
for damages fails. But the defendant is entitled to judgment on his
counterclaim, since the plaintiff is liable for the rent due at Christmas 1987,
which would cover the period until she was called on to give up possession, and
is liable for mesne profits thereafter.
I would allow this appeal accordingly.
Agreeing, NICHOLLS LJ said: I have
sympathy for both parties. They became locked into a situation in which, I
suspect, both have suffered significant financial loss. The plaintiff’s
misfortune was to enter the property and spend money on decorations and stock
and so forth before completion of the assignment of the lease. She was
confident that the landlord would give his consent to the assignment and change
of use. Unhappily, her confidence was misplaced. So when difficulties arose she
could not simply quit the property, as she would have been fully entitled to do
in the absence of the landlord’s consent to the assignment. She had invested
too much money in the venture. Nor could she trade even on a temporary basis,
and recoup some of her losses and pay the current rent. That would have been a
breach of the user covenant in the lease. So matters drifted on. She resisted
all attempts to get her to leave, although there could never have been a
realistic prospect that she would obtain specific performance of the contract:
in the absence of the landlord’s consent to assignment, her vendor was not in a
position to complete the sale.
For his part the defendant was
understandably anxious to put an end to his continuing obligation to pay rent,
quarter by quarter, for a property yielding no return to him. If he abandoned
his efforts to obtain the landlord’s consent sooner than he might have done,
his landlord’s attitude must be kept in mind. It was in the landlord’s interest
to stall and to withhold his consent, for that might well result in the lease
being surrendered to him. That was the course followed by the landlord. Further
efforts by the defendant would have achieved nothing. However, the defendant
could not surrender the property, because the plaintiff was in occupation. Thus
he had to pay the rent for some three years, from Christmas 1987 until December
1990. The rent was £4,250 a year. In addition there were rates and other
outgoings for water, electricity and gas. In return for those payments the
defendant received nothing. He had no use of the property and he received no
payment from the plaintiff even though she was in occupation.
Effectually, therefore, the property was
sterile for this period. Who should bear the loss? To this question, as between the plaintiff
and the defendant, there can be only one answer: the plaintiff. She entered the
property pursuant to an agreement signed by her which envisaged and provided
that she was to pay rent from Christmas 1987. That agreement also provided
expressly that ‘I [the defendant] will give you [the plaintiff] immediate possession
at your risk’. Unfortunately, for a reason for which she cannot fairly blame
the defendant, the risk that the matter might not proceed to completion
materialised.
LEGGATT LJ agreed and did not add anything.
The appeal was allowed and judgment was
given for the defendant on his counterclaim, with damages and interest to date
agreed at £16,208. The defendant was awarded the costs of the appeal and the
costs of the claim and counterclaim below; the order for costs not to be
enforced without the leave of the court. Further instructions as to costs were
given by the court.
