England and Wales Lands Tribunal

Taylor v Joshi [2006] EWLands LRX_107_2005 (15 September 2006)

LRX/107/2005

LANDS TRIBUNAL ACT 1949

LANDLORD AND TENANT – fees and costs incurred by a manager appointed under s.24 Landlord and Tenant Act 1987 as amended ... terms of lease insufficiently wide to permit recovery under service charge provisions ( recoverability under terms of order which appointed the manager.

IN THE MATTER OF AN APPEAL FROM A DECISION OF THE LEASEHOLD

VALUATION TRIBUNAL FOR THE LONDON RENT ASSESSMENT PANEL

BETWEEN BRUCE MAUNDER TAYLOR Appellant

and

BILESH JOSHI Respondent

Re: 9 Mapesbury Road

London NW2 4HX

Determination under written representations procedure pursuant to the

request of the parties and the direction of the President

Before: His Honour Judge Huskinson

FINAL DECISION

1. This is the final decision of the Lands Tribunal in this matter. It is given in the light of my provisional decision of 4 August 2006 a copy of which is attached and which should be read as the introduction to this Final Decision.
2. My decision of 4 August 2006 gave in paragraph 13 my findings regarding the recoverability of the charges referred to in paragraph 56 of the LVT's decision ... my reasons for this finding are given in the previous paragraphs.
3. The LVT had concluded that the Appellant was not entitled to recover the charges (as reduced) of £3525 through the general service charge provisions in the lease and that this sum should be removed from the general service charge and recovered from the Respondent personally.
4. I agreed with the LVT that, having regard to the terms of the lease, the paragraph 56 charges are not recoverable through the general service charge provisions in the lease. However I respectfully disagreed that this meant that the Appellant must seek to recover the whole of the paragraph 56 charges from the Respondent personally. Instead I concluded that the Appellant is entitled to recover these paragraph 56 charges in accordance with the LVT's order dated 22 January 2003 whereby the Appellant was appointed manager of the building, such that the Appellant was entitled to recover from the Respondent a rateable proportion of these paragraph 56 charges in respect of each of the two flats of which the Respondent is the lessee.
5. In paragraph 14 of my decision of 4 August 2006 I stated that it seemed to me at present that the same argument and analysis fell to be applied in respect of certain fees or costs referred to in paragraphs 50 and 53 of the LVT's decision (hereafter "the paragraph 50 charges" and "the paragraph 53 charges") as applied in relation to the paragraph 56 charges. I stated therefore that my decision was provisional pending:

(1) submissions from the parties as to whether the grant of permission to appeal should be read as extending to the paragraph 50 and paragraph 53 charges and (if it cannot be so read) whether I should extend permission so as to embrace those charges; and

(2) submissions as to costs.

6. These points were the only points on which further submissions were sought. I should point out that, even prior to my decision of 4 August 2006, the extent of the matters before me did not extend to the question under section 19 of the Landlord and Tenant Act 1985 as to whether the costs which the Appellant sought to recover had been reasonably incurred or whether the services or the works which they were incurred in respect of were to a reasonable standard. These were matters which the LVT considered and made rulings upon, but there is not before the Lands Tribunal any appeal by the Respondent challenging these rulings.
7. The Appellant made written submission that the principles of my decision of 4 August 2006 regarding the paragraph 56 charges equally apply to the paragraph 50 and 53 charges. I was invited to read the grant of permission to appeal as allowing these points to be raised alternatively I was asked to enlarge the grant of permission to appeal so as to allow this.
8. The Respondent in response to my invitation for further submissions on the limited points mentioned above has submitted over 750 pages of documents, which include the full bundles which were before the LVT. He seeks to raise complaints which were never before the Lands Tribunal regarding the reasonableness of various matters dealt with before the LVT and allegedly relevant under section 19 of the 1985 Act. The Respondent submits he has cause to complain against the Appellant of perjury in relation to certain past matters and suggests there should be an oral hearing regarding this. These points are not open to the Respondent to raise and I have not been assisted by this material.
9. The Respondent also submitted that:

(1) the grant of permission to appeal did not permit the raising of the paragraphs 50 or 53 charges;

(2) the Lands Tribunal has no jurisdiction to extend the ambit of the grant of permission ... and the Respondent asked for an oral hearing on this point.

10. The terms of the grant of permission to appeal are set out in paragraph 4 of my decision of 4 August. For present purposes I am prepared to assume in the Respondent's favour (without deciding the point) that the proper construction of this grant permission is that, despite the text of the reason for the grant (which seems to indicate that all the management costs should be examined), the grant in fact only specifically permits the paragraph 56 charges to be challenged.
11. However I am satisfied that I have jurisdiction to enlarge the grant of permission and I have no hesitation in doing so such that the grant of permission reads:

"Permission to Appeal is GRANTED limited to the question of whether the fees and costs referred to in paragraphs 50, 53 and 56 (as reduced in paragraphs 53 and 56) of the Leasehold Valuation Tribunal's decision are relevant costs. For the following reason ...

The question of the effect of the Order appointing the Manager upon the entitlement to recover the costs of the management by way of service charge requires review".

12. I conclude I have jurisdiction so to enlarge the ambit of the appeal for the following reasons. Under the Lands Tribunal Rules 1996 as amended provision is made in Part IIA for application for permission to appeal. Rule 5F provides:

"(1) If the Tribunal grants permission to appeal it may do so on such conditions as it thinks fit."

Thus the proper construction of the limited grant of permission is a grant of permission to appeal, but subject to conditions. There being a valid appeal before me, I am satisfied that I have jurisdiction to alter these conditions if it is just to do. I am confirmed in this view by Rule 36 which is in the following terms:-

"(1) On the hearing of an appeal under Part III or of an application under Part V, the appellant or applicant may rely only on the grounds stated in his notice of appeal, statement of case or application unless the Tribunal permits additional grounds to be put forward.

(2) If the Tribunal permits additional grounds to be put forward in accordance with paragraph (1) it may do so on such terms as to costs, adjournment or otherwise as it thinks fit."

Thus the Rules contemplate that additional grounds, not originally raised (and therefore not the subject matter of any grant of permission) can be put forward if so permitted. The Tribunal has jurisdiction to permit such an amendment.

13. I therefore conclude I have the jurisdiction to permit the amendment by relaxing the condition subject to which permission to appeal was granted. I also conclude it would be just to permit the amendment as there is no prejudice to the Respondent in permitting it. Exactly the same argument arises regarding the paragraphs 50 and 53 charges as arises in relation to the paragraph 56 charges. It would be unjust to limit the Appellant to the paragraph 56 charges and to allow to remain in place regarding the paragraphs 50 and 53 charges a ruling which I consider is wrong for precisely the same reasons as I consider the LVT's ruling regarding the paragraph 56 charges to be wrong.
14. I do not consider it necessary or appropriate to make any terms as to costs adjournment or otherwise under Rule 36(2). The Respondent has had the opportunity of making submissions in writing to me as to whether the ambit of the appeal should be enlarged to embrace the paragraphs 50 and 53 charges. I have taken into consideration his submissions. I reject his suggestion there should be an oral hearing on this point. This would be unnecessary, unusual and disproportionate having regard in particular to the fact that, by agreement between the parties, this case has been ordered to be decided through the written representation procedure.

Conclusions

15. My decision regarding the paragraph 56 charges remains as stated in paragraph 13 of the decision of 4 August 2006
16. As regards the paragraphs 50 and 53 charges the LVT was satisfied as to the quantum of these charges (having made certain deductions in paragraph 53), but concluded that these charges were not recoverable under the terms of the lease (I agree) and therefore were not properly included within the service charge account (I agree with this point too). Where I differ, with respect, from the LVT is in its conclusion that the Appellant will in consequence need to seek to recover the whole of these paragraphs 50 and 53 charges from the Respondent personally. In paragraph 54 the LVT refers to the Appellant's appointment as manager. However the LVT does not make reference to paragraph 5 of the Order appointing him (see paragraph 3 of my decision of 4 August). In my judgment not only the paragraph 56 charges but also the paragraphs 50 and 53 charges are recoverable by the Appellant from the Respondent in accordance with paragraph 5 of the LVT's order of 22 January 2003 which appointed the Appellant as manager of the building. The Respondent is therefore obliged to pay the specified rateable proportion of the relevant charges in respect of each flat of which he is a lessee.
17. Neither the Appellant nor the Respondent made any application for costs against the other in respect of the proceedings before the Lands Tribunal. No order for costs is made.
18. In the result I allow the Appellant's appeal to the following extent, namely I find as follows:

(1) The LVT was correct in concluding that the paragraphs 50, 53 and 56 charges were not recoverable under the terms of the lease through the service charge.

(2) The LVT was wrong in concluding that the Appellant would therefore need to seek to recover the whole of these charges from the Respondent personally. Instead I find that the Appellant is entitled to recover these charges from the Respondent in accordance with the provisions of paragraph 5 of the LVT's Order dated 22 January 2003 appointing the Appellant as manager of the building, such that for each of the two flats of which the Respondent is a lessee the Respondent is obliged to pay to the Appellant the appropriate rateable proportion (as shown in paragraph 5 of the Order in respect of his two flats) of the paragraph 50 charges and the paragraph 53 charges (as reduced in paragraph 53) and the paragraph 56 charges (as reduced in paragraph 56).

Dated 15 September 2006

His Honour Judge Huskinson