ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
MR N. STRAUSS QC
(sitting as a deputy judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LADY JUSTICE BLACK
| Michael Gerson Limited
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Kirk Reynolds QC and Mr Richard Clegg appeared on behalf of the Respondent.
Crown Copyright ©
Lady Justice Arden:
"(a) that (whether or not incorporated into the premises or into other premises or otherwise attached thereto) the goods will remain your property unless and until title thereto passes to the customer following satisfaction of all the customer's obligations under the agreement;
(b) that I/We will not seize distrain on or levy execution on, or otherwise seek to deprive you of the goods or claim any interest therein whilst any monies remain owing to you under the agreement or whilst title in the goods remain vested with you.
(c) that whilst any monies remain owing to you under the agreement or title in the goods remains vested in you, you shall be entitled at any time to enter the premises or any other premises of which I/We am/are then landlord…and remove the goods therefrom PROVIDED THAT you remedy any damage thereby caused to such premises as soon as reasonably practicable.
(d) that in the event we determine the lease we will give you notice of the termination and thereafter 28 days in which to remove the equipment.
(e) that we agree that this agreement will bind our successors in title and assigns thereof."
"15. The only factual issue affecting liability in this case arises from a conversation between Mr Gerson and Mr Kohler which took place on 21st June 2007. By this stage, Mr Kohler had obtained details of the equipment leased to KPR/KPG from the directors. There were several other equipment leases. Mr Kohler had set out the details on a schedule. He needed the information in order to deal with the lessees. Mr Gerson had learned of a possible re-letting of the premises to another company in the same business. This was in fact a company called Perfect Party Ltd, but by the time of the conversation the defendant had decided that it would not proceed with the transaction without better information as to the company's substance. On the previous day, Mr Gerson had written to other equipment lessors, who had financed equipment at the premises, at the suggestion of Mr Simon, one of KPG's directors, to propose a standstill pending negotiations to sell the business.
16. Mr Gerson was concerned to get the best value for the claimant's equipment, whether from the defendant or from a new lessee. He therefore telephoned Mr Kohler, and pressed upon him at some length the proposition that it would be in the interests of both the claimant and the defendant to find a new tenant which would be interested in making use of the equipment, and that a tenant operating in the same field as KPR/KPG would be ideal. Mr Kohler was not very forthcoming, but did not disagree with what Mr Gerson said. Mr Kohler had no recollection of Mr Gerson's pressing this line of approach on him, but accepted that the conversation may have been to this effect. I accept Mr Gerson's evidence that there was a conversation along these lines.
17. For his part, Mr Kohler, while not actually recollecting what he had sad, was certain that he would have told Mr Gerson that the lease had been terminated. The whole point of collecting the information relating to the equipment leases was to be able to deal with the lessees, and he would have had no basis for doing that until the lease was terminated. Therefore, that is something which he would have made clear in all conversations which he had with the different lessees. Mr Gerson's evidence is that he was not told that the lease had been terminated, but on this point I prefer Mr Kohler's evidence, and I find that he did tell Mr Gerson that the lease had been terminated.
18. It is important to note that neither Mr Gerson nor Mr Kohler had the terms of the Landlord's Waiver at the forefront of his mind. Mr Gerson was not aware of the termination of the lease at the time he telephoned Mr Kohler, not having seen the notice at the premises, and in his mind (rightly or wrongly) written notice was required. Therefore, the fact that Mr Kohler said that the lease was terminated (as I find) would not have made any particular impression on him. He would not have recognised this as something which started the 28 day period for him to remove the equipment the equipment running. So far as Mr Kohler is concerned, I accept his evidence that he did not at the time have a copy of the Landlord's Waiver available to him. His purpose in mentioning termination of the lease was not to trigger the 28 day period in the Landlord's Waiver, but simply to make the defendant's position in relation to the premises clear."
"The first question is, what is the meaning of the debtors 'giving notice' that he has suspended, or is about to suspend, payment of his debts? I think it does not mean mere casual talk; it must be something formal and deliberate, something done by the debtor with a consciousness that he is 'giving notice,' and intended to be understood in that sense. An act of bankruptcy is a serious matter. I am of opinion that what was done in the present case did not amount to a 'giving notice' within the Act"
"something which he would have made clear in all conversations which he had with the different lessees."
Lady Justice Black:
Sir Nicholas Wall:
Order: Application refused; appeal dismissed