Notice exercising right to break lease–Whether sent to tenant’s ‘last known address’–Yes–Last known address of tenant company its registered office, not the address of an associated firm of managing agents with whom the landlord had normally dealt
This was an
appeal by National Westminster Bank Ltd from a judgment of Phillips J dated
March 19 1974 declaring in favour of the respondents, Betchworth Investments
Ltd that a notice of March 23 1973 purporting to exercise a right to determine
a lease of premises at 77 High Street Godalming, Surrey, was not validly served
by the appellants in that it was incorrectly addressed. The judgment below was
reported at (1975) 234 EG 43, [1975] 1 EGLR 44.
Mr C F Dehn QC
and Mr P Curtis-Bennett (instructed by Rubinstein, Nash & Co) appeared for
the appellants, and Mr D A Wood (instructed by Roche, Son & Neale)
represented the respondents.
Giving
judgment, CAIRNS LJ said: This is an appeal from a decision of Phillips J on
cross-claims for declarations. The learned judge dismissed the plaintiff’s
claim and made a declaration on the defendants’ counterclaim. The question at
issue was whether a notice served by the plaintiffs as landlords on the
defendants as tenants to break a lease was validly served or not. The
plaintiffs claimed that it was; the defendants claimed that it was not. The
judge decided that it was not, and the plaintiffs now appeal to this court. The
result depends on whether the address to which the notice was sent was the last
known address of the defendants within the meaning of the lease. The lease was
a 14-year lease granted on October 5 1966 by the plaintiffs’ predecessors to
the defendants–the plaintiffs’ predecessors, because the plaintiffs are
National Westminster Bank Ltd and the plaintiffs’ predecessors were the
Westminster Bank Ltd. While the lease was a lease for 14 years from March 25
1966, it was subject to provisions for earlier determination. Those provisions
were contained in clause 4 (1) of the lease in these terms: ‘If either of them
the lessor or the tenant shall be desirous of determining the present lease on
the twenty-ninth day of September one thousand nine hundred and seventy-three
and of such its desire shall give six months’ previous written notice to the
other of them’–then I need not read the next few lines–‘then and in such case
on the said twenty-ninth day of September one thousand nine hundred and
seventy-three this present lease shall cease,’ and I need not read the
concluding words of the subclause. Then in subclause (3) of clause 4 was this
provision:
Any notice
under this lease shall be in writing and any notice to the tenant shall be
deemed to be sufficiently served if left addressed or sent by post to it on the
demised premises or sent to it by post at its registered office or last known
address in Great Britain or Ireland (whether Eire or Northern Ireland) and any
notice to the lessor shall be deemed to be sufficiently served if sent to it by
registered post to or left at its registered office.
It was recited
at the beginning of the lease that the defendants, Betchworth Investments Ltd,
had their registered office at 157 Victoria Street, London SW1, and that was
the only address of the defendants given in the lease. The evidence in the case
was by way of affidavits, and there is no substantial dispute on the facts.
According to the affidavit of Mr Cotter, who is the assistant regional premises
manager of the plaintiffs, there was correspondence between the plaintiffs and
the defendants at that address during the next 18 months or so. I understand
that statement of Mr Cotter’s as meaning that during that time letters were
sent by the plaintiffs to the defendants addressed to 157 Victoria Street, and
replies were received by the plaintiffs from that address. On May 24 1968 the
plaintiffs wrote to the defendants about paying the cost of certain works, and
the letter was sent to 157 Victoria Street. The reply, however, came from a
firm of chartered surveyors, Mellersh & Harding, from their address at 43
St James’s Place, SW1. It is therefore apparent that the letter had been sent
on from the registered office in Victoria Street to the chartered surveyors,
who were the managing agents for the defendants. At no time was any express
indication given by the defendants to the plaintiffs that they had changed
their address from 157 Victoria Street. However, after that time, May of 1968,
there was no direct communication between the plaintiffs and the defendants.
All the communications that took place were between the plaintiffs and either
those managing agents or the defendants’ solicitors, mainly the former.
Accordingly, the plaintiffs’ records continued to show 157 Victoria Street as
the defendants’ address. In March 1973 the plaintiffs decided to exercise their
option to break the lease, and instructions were given to their solicitors to
serve the appropriate notice by post at that address, and the letter was
prepared and posted on March 23 1973, addressed to the defendants at 157
Victoria Street. It is admitted that the notice was sent in good time to reach
that address by March 29, and that if it was correctly addressed the notice was
validly served. Although, by a respondents’ notice in this court, it was
contended that actual delivery was needed, that argument was not pursued by Mr
Wood on behalf of the defendants here.
Now in fact by
March of 1973, 157 Victoria Street was no longer the defendants’ registered
office, and indeed was no longer in existence; the building had been
demolished; and the envelope containing the notice was returned by the Post
Office to the plaintiffs. The plaintiffs then discovered that by that time the
defendants’ registered office had been changed to 1 Dover Street, and had in
fact been so changed in December 1970. The plaintiffs sent the notice then to
that office, but of course it did not arrive there till some days later, in
fact April 4, which was too late to be good service giving the required six
months’ notice. The defendants’ case, which was accepted by the trial judge,
was that by March of 1973 the defendants’ last known address within the meaning
of the clause was 43 St James’s Place. The plaintiffs concede that 157 Victoria
Street was not in any sense the defendants’ address in March of 1973, but they
say it had been at one time their address, and it was known to the plaintiffs
to be their address, and it had never ceased to be their last known address. It
is said that it would only cease to be their last known address if the
plaintiffs got to know that some other address had become the defendants’
address, and, say the plaintiffs, 43 St James’s Place never became
the defendants’ address at all, and if it did, it never became known as their
address to the plaintiffs. Reliance is placed, and in my view very properly placed,
upon section 107 of the Companies Act 1948, which provides:
A company
shall, as from the day on which it begins to carry on business, or as from the
fourteenth day after the date of its incorporation, whichever is the earlier,
have a registered office to which all communications and notices may be
addressed.
There may, of
course, be more than one address of a company, and the relevant clause of this
lease recognises that. There may be another place where the company carries on
business. But that does not deprive the registered office of having the
character of a place to which communications and notices may be addressed. Now,
did 43 St James’s Place ever become the address of the defendants? Mr Hawkes, the managing director of the
defendant company, says that at no material time did the defendants have a
separate place of business. The whole of their business was conducted through
the firm of chartered surveyors as their managing agents, that being a firm of
which Mr Hawkes himself was the senior partner. The judge accepted that the
registered office of a company could be an address within the meaning of this
clause, and consequently could be, in certain circumstances, the last known
address within the meaning of that clause; but he considered that the
expression would also cover, in the context of this lease, any address of the
tenant which the landlord and the tenant used in the course of the lease while
transacting business arising out of the lease, and that because from 1968
onwards all such business, except certain legal business conducted between
solicitors, had been dealt with between the plaintiffs and the managing agents,
the address of the managing agents became at some stage (he did not decide
exactly when) an address of the defendants, and since the plaintiffs learnt of
it after they learnt of the registered office, it was therefore the last known
address within the meaning of the clause.
With all
respect to the judge, I cannot accept either of these conclusions. There is no
suggestion that any letter was ever addressed to the defendants at St James’s
Place or that any letter signed as their letter was sent from there. There is
no evidence that their name was displayed there; and it may be observed that it
is provided by section 108 (1) (a) of the Companies Act that ‘every company
shall paint or affix, and keep painted or affixed, its name on the outside of
every office or place in which its business is carried on, in a conspicuous
position,’ and so forth. I am quite unable to accept that when business is
conducted by managing agents on behalf of a company the address of the managing
agents becomes the address of the company, unless indeed the company were to
inform a correspondent ‘letters may be sent to us addressed care of so-and-so,’
in which circumstances I think it might become an address within the meaning of
this clause. Even if it could be said that St James’s Place had become an
address of the defendants and to have become known to the plaintiffs as such, I
do not see how it would displace 157 Victoria Street as another known address.
Plainly a person or a company can have more than one last known address. I am
quite unable to accept the judge’s reasoning that the last address which
becomes known to the landlord is the last known address.
Mr Wood, who
has presented a vigorous argument to the court on behalf of the defendants, has
said that the places chosen by the parties for the purpose of this clause as
the places to which notices may be sent are chosen as places at which the
tenant could be expected to get those notices. With that I entirely agree; but
that does not mean that every place at or through which a tenant could be
expected to get a notice thereby becomes an address. It has to be within the
description of one of these three places, the demised premises, the registered
office or the last known place of address; and, of course, if people are honest
and businesslike there will rarely be any failure of actual communication.
Nobody for a moment suggests in this case anything other than honesty on the
part of the defendants, and as to being businesslike I can only say that it
would have been more businesslike on their part if they had informed the
plaintiffs of the change of their registered office, and indeed, if they
desired to say so, that they were carrying on business thence-forth from 43 St
James’s Place, though if they were carrying on business from St James’s Place
then they ought to have their name up at the premises. There is no evidence one
way or the other as to whether they had. Mr Wood suggests that the defendants’
address is simply a place where they can be reached. I would not accept that.
For instance, taking an individual, as distinct from a company, it may be known
to a person dealing with him that he could always be reached in a particular
public house, that he was at that public house every evening and that a letter
addressed there would always reach him. But that would not become his address
for the purpose of a clause of this kind. I am quite unable to accept that the
address of agents can become the address of the tenants simply by being the
place to which and from which correspondence is carried on by those agents as
agents for the tenants. Reference has been made to dictionary definitions of
the word ‘address,’ and all those definitions are roughly the same, the Oxford
English Dictionary having as its relevant definition ‘The name of the place to
which a person’s letters are directed.’
I think that means letters which are directed to that person by name at
that particular address, not letters to an agent, even if he be a managing
agent acting on his behalf.
Mr Wood
suggests that a registered office is not in itself an address. I think it must
be. I refer again to section 107 of the Companies Act. The very nature of a
registered office is the place to which communications and notices may be
addressed. That is the definition of it. And by saying, ‘our registered office
is so-and-so,’ as the defendants did in this lease, they are saying, ‘that is
our address to which communications may be sent.’ Then further it is suggested that if a
registered office always is an address it was unnecessary surplusage for both
‘registered address’ and ‘last known address’ to be mentioned in the clause. I
think they are both mentioned for perfectly good reasons. It is convenient that
the landlord should be able to serve the tenants at their registered office
because the registered office because the registered office is something which
is always ascertainable. They could always discover that from the Companies
Register. On the other hand, they may not know the company’s registered office.
They may not want to take the trouble of going to the Companies Register to
discover it, and therefore it is convenient for them to be able to serve the
notice at the place of business which, in nine cases out of ten, will be the
actual place where day-to-day business is being carried on by the company, and
in the tenth case will be the last place where the landlords had communication
with them. It seems to me perfectly sensible that both alternatives should be
provided. I, for my part, am entirely satisfied that the last known address of
the defendants within the meaning of this clause was the, Victoria Street
address, and accordingly the notice was validly served. I would therefore allow
the appeal, set aside the declaration made on the counterclaim, and make
instead the declaration that is prayed for in the plaintiffs’ statement of
claim.
LAWTON LJ: I
agree. In my judgment, this appeal turns solely upon the construction of the
words ‘last known address’ in clause 4 (3) of the lease. Those words are words
in ordinary usage in English. In no way are they words of art. They have no
special meaning in law. They must be construed in the way ordinary people accustomed
to the accurate use of the English language would construe them. In my
judgment, no useful purpose is served by a detailed semantic analysis of the
phrase. What would the ordinary
for this purpose to know, the provisions of section 107 (1) of the Companies
Act 1948. Once such a person had been told what the law requires of a company
in respect of a registered office, such a person would undoubtedly say, ‘the
registered office is the address of the company’; and he might go on to say,
‘and any address of a company must be a place with which the company has a
close connection.’ The offices of the
managing agents would not, in ordinary usage, be described, in my judgment, as
the company’s address. It would be the address through which the company could
be reached, but not sufficiently close to be the company’s address. In those
circumstances, it seems to me that the lack of proximity of the managing agents’
offices to the company is sufficient to resolve this case. I too would allow
this appeal, and make an order as my brother Cairns LJ has stated.
MACKENNA J: I
do not think that the defendant company can succeed unless either (1) Victoria
Street never was an ‘address’ of the company within the meaning of clause 4, or
(2) St James’s Place became one of its addresses. It may be that something more
would have to be shown for the company to succeed, but unless one or other of
these two propositions is established the company must fail. I hold (1) that at
the date when the lease was granted Victoria Street was an ‘address’ of the
company within the meaning of clause 4, and (2) that St James’s Place has not
been shown ever to have become one of its addresses. The first of these
conclusions depends on the view that the address of the company’s registered
office is an ‘address’ within the meaning of clause 4, even though no business
of the company was ever transacted at that office. The second depends on the view
that St James’s Place has not been shown to have been more than the address of
the company’s agents, and that something else would have to be shown to make it
the company’s own address. It follows from these findings that Victoria Street
was an address of the company known to the plaintiffs, and the only address of
which they ever knew, and therefore that it was that company’s ‘last known
address,’ so that the notice sent to it was properly served. I would allow the
appeal.
The
appellants were awarded the costs of the appeal and of the claim and
counterclaim below.