PROPERTY TRUSTS AND PROBATE LIST
Strand, London, WC2A 2LL
B e f o r e :
| Ropemaker Properties Limited
(2) The Churchmanor Estates Company plc
|- and -
|Bella Italia Restaurants Limited
Casual Dining Limited
Mr Patrick Rolfe (instructed by Freeths LLP) for the Defendants
Hearing dates: 18th April 2018
Crown Copyright ©
Mr Justice Fancourt :
"The Landlord and Tenant may only waive the Condition Precedent by agreement in writing".
"13.1 This Agreement is entered into subject to and conditional upon the Neighbouring Unit Condition being satisfied in accordance with this Agreement.
13.2 The Neighbouring Unit Condition is the satisfaction of all of the Neighbouring Unit Conditions Precedent and the Developer or the Landlord giving written notice to that effect to the Tenant and for the avoidance of doubt, the Neighbouring Unit Condition shall be satisfied upon the service of such notice.
13.3 The Landlord or the Developer shall give the written notice to the Tenant referred to in clause 13.2 as soon as reasonably practicable after the satisfaction of the last of the Neighbouring Unit Conditions Precedent.
13.4 The Landlord and/or the Developer may waive the Neighbouring Unit Condition in its absolute discretion at any time before a notice is served under clause 15.3.
13.5 In this clause 13:-
13.5.2 "The Neighbouring Unit Conditions Precedent" means the conditions precedent to which the letting of the Neighbouring Unit is subject and conditional upon and which are the same in all material respects the Conditions Precedent.
14 If either:-
14.1 the Unconditional Date (Planning) has not occurred by the
Planning Long Stop Date; or
14.2 any of the Unconditional Dates have not occurred by the Agreement Long Stop Date
then either the Landlord or the Tenant may at any time after the Planning Long Stop Date (where clause 14.1 applies) or the Agreement Long Stop Date (where clause 14.2 applies) (but only before an Unconditional Date) give written notice to the other and the Guarantor to determine this Agreement".
" … in writing and shall be delivered personally, or sent by pre-paid first class post or special delivery or by commercial courier, to each party required to receive the notice or communication as set out below …"
"c/o the Property Director Bella Italia Restaurants Limited at its registered office from time to time and at the same time copied to the Tenant's Conveyancer quoting its reference".
"in so far as necessary we confirm that the requirement to serve a termination notice on us, as Guarantor under the agreement for lease, was waived at the time you served the notice on the Landlord and such requirement remains waived."
"David and Jonathan
Please see the attached for your records, which will be sent by Special Delivery in tonight's post.
Once served tomorrow I shall email copy to the landlord's lawyers."
"Given that Directors of each of [Bella] and [the Guarantor] had resolved to terminate the Agreement and had received notice of that resolution, and that Steve Richards had authorised service of the First Terminate Notice and I had actually received it, the additional service of the First Termination Notice by sending it to [the actual Guarantor] was not necessary. Hence the letter from Steve Richards to the first defendant dated 7 August 2017 … confirming that '… the requirement to serve a notice on [CDL] as Guarantor under the [Agreement], was waived at the time [the First Defendant] served the notice on [the Third Claimant] and such requirement remains waived'."
"Our client did not serve a copy of its termination notice on the Guarantor, but for the simple reason that it did not have to do so. On a natural interpretation of the termination right in clause 14.2, and also as a matter of commercial commonsense, the requirement to serve a termination notice on the Guarantor only applied where your client is exercising its right under clause 14.1 or 14.2, not our client."
i) The Landlord's notice under clause 13.3 dated 30 August 2016 was invalid;
ii) Bella's notice to terminate under clause 14.2 dated 16 May 2017 was invalid;
iii) By 1 August 2017 at the latest, all the Unconditional Dates had occurred and so the Agreement became unconditional; and
iv) Bella's second notice to terminate dated 26 September 2017 was therefore ineffective.