Glen International Ltd v Triplerose Ltd

This is an appeal from a judgment and order given and made by HHJ Williams sitting at Woolwich County Court on 18 July 2006. It is a dispute between a landlord and a tenant. It arises out of a notice dated 7 December 2004 purportedly served under section 42 of the Leasehold Reform Housing and Urban Development Act 1993 and sent to the landlord, Triplerose Limited, at two addresses, in each case by recorded delivery. From one of those addresses the notice was returned undelivered. However, the tenant, Glen International Limited, holds a signed receipt from the other address to which the notice was sent, Middlesex House, 29-45 High Street, Edgware. It is common ground, the landlord having failed to serve a counter notice under section 45 of the Act, that if the notice was properly served the judge had no option but to make the order which in the event she did. By that order she held that the tenant was entitled to a new lease of the relevant property.

The first issue before us arises on section 99 of the Act. Section 99(3) provides that:

It is common ground that Middlesex House was an address which had been furnished to the tenant by the landlord as the landlord’s address in accordance with section 47 of the Act; one sees that for example in a rent notice dated 21 April 2004. As will be appreciated, however, from the terms of section 99(3) of the 1993 Act, the address supplied in accordance with section 47 ceases to be relevant if an address has been supplied in accordance with section 48, and the first of the matters we have to decide is whether, as the landlord asserts though the tenant disputes, the landlord had furnished a notice in accordance with section 48.

This requires consideration of correspondence which began on 9 April 2002 with a letter written by the tenant’s agents, a firm of chartered accountants, to the landlord’s agents, Avon Estates (London) Limited. In that letter the tenant’s agents, a firm called S K Thakrar and Company, wrote asking the landlord’s agents:

The correspondence upon which the landlord more directly relies commences with a letter from solicitors acting for the tenant, Portner and Jaskel, dated 24 August 2004. It is to be noted, however, as part of the background and context in which that and subsequent correspondence has in my judgment to be read and understood, that in the rent notice dated 21 April 2004 to which I have already referred the address of the landlord’s agents, Avon Estates, was given as 17 Rostrevor Avenue, Haringey, whereas the landlord was separately identified and the landlord’s address was stated as being Middlesex House, Edgware.

Portner and Jaskel, who appear by that time to have been acting for the tenant -- Bowling and Co having seemingly dropped out of the picture – wrote, as I have said, on 24 August 2004:

It appears, although we have not been shown a copy of it, that Avon Estates replied on 2 September 2004. For on 7 September 2004 Portner and Jaskel wrote to Avon Estates thanking them for their letter of 2 September and saying that having taken their client’s instructions they commented as follows: the details do not matter, save to note that the subject matter of correspondence had now expanded beyond the Schedule of Dilapidations to embrace a question of insurance.

On 8 September 2004 Portner and Jaskel wrote again to Avon Estates:

On 20 September 2004 Portner and Jaskel wrote a chasing letter observing that they had received no response either to their letter of 7 September or to their letter of 8 September 2004. Avon Estates responded to Portner and Jaskel on 28 September 2004 referring to the Schedule of Works; their appointment of a surveyor; and indicating that they hoped that the contractors would be on site within five to six months. Portner and Jaskel responded on 5 October 2004. Under the heading Schedule of Works, they dealt with certain matters to do with the Schedule of Dilapidations; under the heading Insurance they dealt with certain matters relating to insurance; and under the heading Correspondence address they wrote:

On 18 October 2004 Avon Estates finally responded to the request in relation to the correspondence address. Since this is the crucial letter relied upon by the landlord, I should read it in full:

We have helpfully been referred by counsel to various authorities on what does or does not comply with the requirements of section 48 of the 1987 Act. I need refer to only one of the cases, Drew Morgan v Hamid-Zadeh[1999] 2 EGLR 13, in which at page 14 H to K, Judge LJ summarised the law as follows:

Mr Zelin submits that in the circumstances, and construed against the matrix of surrounding fact, a reasonable recipient would have understood that the letter of 18 October 2004 was indeed indicating that the address given was the address to which, as he put it, all the documentation relating to the lease could be sent. He points to the following circumstances: Avon Estates was writing on behalf of the landlord. He asserts that the reference to “correspondence” in the correspondence embraced any correspondence aimed at the landlord in relation to the property. He points to the fact that in the letter of 8 September 2004 Portner and Jaskel had themselves used the phrase “all future correspondence.” He asserts that there was no indication that Portner and Jaskel’s retainer was in any way limited, commenting further that, as we have seen, the ambit of the correspondence had in any event widened out from the initial subject matter of the Schedule of Dilapidations to embrace insurance issues. He asserts that the landlord had no reason to believe that Portner and Jaskel were not acting in connection with the property and the lease generally, and that when the correspondence referred to “correspondence” or “all correspondence” it meant not merely correspondence in the form of letters but correspondence more generally, including notices. He says that the words “write to us” meant write to Avon Estates as agents for the landlord. He submits that the letter of 18 October 2004 was clearly addressed to Portner and Jaskel as solicitors and agents for the tenant, and he says that it is to be derived from the correspondence that the landlord was, in that letter, evincing a clear intention that any correspondence from or on behalf of the tenant -- any correspondence, including notices as well as letters from or on behalf of the tenant -- should be sent to the stated address, namely 17 Rostrevor Avenue.

I do not agree with Mr Zelin’s submissions. It is to be noted that the letter dated 8 September 2004, in which the question of the correspondence address was first raised, used the word “correspondence”. Furthermore, as we have seen, it contemplated correspondence being written “to you,” namely correspondence being written to Avon Estates. It is to be borne in mind as an important circumstance, in my judgment, that the correspondence, although referable to the lease and the relationship of landlord and tenant, was specifically focussed initially upon matters of dilapidations, and subsequently upon questions of insurance, and dealt with nothing else. There is not to be found anywhere in the correspondence anything which either explicitly or implicitly indicated that Portner and Jaskel had any more general retainer in relation to either the property or the landlord and tenant relationship.

Throughout the correspondence, as we have seen, the language used was language focussing upon “correspondence”. Indeed, and in many respects mirroring the language which Portner and Jaskel had used in their letter of 8 September 2004, when Avon Estates came to write the crucial letter of 18 October 2004 they again adopted the same terminology referring to “the correspondence address” and inviting Portner and Jaskel to “write to us”.

In order to succeed on this part of his argument Mr Zelin has to demonstrate that, on a fair reading of the correspondence, read in context, Portner and Jaskel, on receipt of the letter of 18 October 2004, would have understood the letter as referring not merely to correspondence in the form of letters being written by them for the purpose of the particular transactions which they were at that stage debating with Avon Estates, but as embracing all documentation -- letters and notices of whatever nature -- relating to the lease.

In my judgment neither the terms of the specific letter relied upon nor that letter read in the context of the correspondence as a whole could reasonably have been regarded by the recipient agents of the tenant as conveying that message. On the contrary, all that was being indicated by Avon Estates when they wrote that letter was that, insofar as there was to be correspondence between Portner and Jaskel and Avon Estates in relation to the matters which were then the subject of correspondence between them, that is to say the dilapidations and the insurance, then for those purposes the address at which they, Avon Estates, were to be written to was 17 Rostrevor Avenue. In my judgment, the correspondence goes no further than that and, accordingly, the letter dated 18 October 2004 was not such as to constitute a notice for the purposes of section 48 of the 1987 Act.

Mr Zelin’s alternative submission, going back to language of section 99 of the 1993 Act, was that even if the letter was not a notice in accordance with section 48 of the 1987 Act, as referred to in section 99(3)(i) of the 1993 Act, it was nonetheless, within the meaning of section 99(3) of the 1993 Act, a notice given by the landlord to the tenant “for the purposes of this section”. With all respect to Mr Zelin, that is a perfectly hopeless argument.

The consequence, in my judgment, is that the relevant address for the purposes of section 99 of the 1993 Act was the address last furnished as the landlord’s address in accordance with section 47 of the 1987 Act; namely, see for example the rent demand of 21 April 2004, Middlesex House. That was the address to which the notice given by the tenant on 2 December 2004 was sent by recorded delivery and accepted. Accordingly, in relation to the first matter which arises on this appeal, the appeal fails and must be dismissed.

In these circumstances there is no need for us to deal with the second matter raised on the appeal nor with the matter raised by Mr Radevsky in his respondent’s notice. I do not propose to deal at all with the matters raised in the respondent’s notice, which relate to matters of fact which were not traversed in any significant detail by the trial judge.

I should, however, deal briefly with the second matter which arises on the appeal. If, contrary to my judgment, the letter dated 18 October 2004 was of its nature capable of being a notice given in accordance with section 48 of the 1987 Act, the question would still arise as to whether, having been sent to the tenant’s solicitors rather than to the tenant, the letter was a notice adequately given to the tenant. In other words, the question would arise as to whether or not Portner and Jaskel had authority to receive a section 48 notice. In my judgment they did not, with the consequence that even if the letter had otherwise been in a form capable of constituting a notice for the purpose of section 48, it would not in fact have been effective to achieve that objective.

The fundamental principle, which is still as good law in 2007 as it was in 1880, is to be found in the judgment of James LJ in Saffron Walden Second Benefit Building Society v Rayner (1880) 14 (Ch) 406 at page 409. I need not read out the passage; it is well known. Mr Zelin sought to avoid the impact of that statement of principle by focussing upon the particular facts and circumstances of the case. I entirely accept that the case was far removed from the facts of the present case. But that seems to me, with respect, to be beside the point. It is the general statement of principle, laying down nothing that was novel in 1880 and something which is still recognised as sound principle today, which is important.

Mr Zelin sought in the alternative to rely upon a number of more recent cases where a landlord’s solicitor or other agent or a tenant’s solicitor or other agent had been held to have authority to receive a notice. Those, as it seems to me, are all decisions on the particular facts of particular cases. In Townsends Carriers Limited v Pfizer Limited (1977) 33 P&CR 361, Sir Robert Megarry Vice Chancellor held that a tenant’s agent did have authority to receive such notice, but that was in circumstances where the agent had been given “general control of the property”. Similarly in Galinski v McHugh [1989] EGLR 109 the decision went on the basis -- see per Slade LJ at page 110 -- that the one party had been told that the other party’s agent:

In the present case there was no holding out by the tenant of Portner and Jaskel to do anything other than act in relation to the specific matters which were the subject of the correspondence; namely, the dilapidations and the insurance. Mr Zelin asserts, correctly, that there is to be found nothing explicit in the correspondence limiting the authority of Portner and Jaskel to those two matters. He asserts that in contrast every indication was given in the correspondence that Partner and Jaskel were acting as the tenant’s solicitors. That latter submission as it seems to me, with all respect to Mr Zelin, comes perilously close to seeking to perpetuate the very fallacy that James LJ was at pains to explode as long ago as 1880.

In my judgment, on any sensible reading of this correspondence the solicitors were acting in relation to dilapidations and in relation to insurance and did not hold themselves out and were not held out by the tenant as acting in any wider or more general capacity. In these circumstances, even if the letter of 18 October would otherwise have been adequate to operate as a notice for the purpose of section 48 of the 1997 Act, it would not in fact have been effective to do so since Portner and Jaskel did not have authority to accept notice for the purpose of that provision.

For each of those two separate reasons, in my judgment, this appeal fails and must be dismissed. I do not, as I say, propose to deal in the circumstances with the respondent’s notice.

I agree so far as the first point is concerned. I have not sufficiently considered the second point to form a concluded view upon it. Nonetheless, I agree the appeal should be dismissed.

I also agree.