BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Perth City Wall Ltd v Smart Events Ltd [2001] ScotCS 172 (29 June 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/172.html Cite as: [2001] ScotCS 172 |
||
[New search] [Help]
|
OUTER HOUSE, COURT OF SESSION |
|
|
|
OPINION OF T G COUTTS, Q.C., SITTING AS A TEMPORARY JUDGE in the cause PERTH CITY WALL LIMITED Pursuers; against SMART EVENTS LIMITED Defenders:
________________ |
Pursers: Coll; Ledingham Chalmers
Defenders: John ston; McClure Naismith
29 June 2001
[1] The defenders are tenants of the pursuers under and in terms of a lease dated 1 September 1999. That lease by Clause 2 requires the tenant to pay the rent in equal quarterly payments in advance on 1 February, 1 May, 1 August and 1 November in each year. It was further provided by Clause 5.1 as follows:-
"5.1 That if the rent herein provided for or any part thereof shall at any time be in arrears for twenty one days after the same shall have become due (whether legally demanded or not) ... then ... it shall be lawful for the Landlord at any time thereafter by notice in writing to bring this lease to an end forthwith and to enter the premises and repossess and enjoy the same as if this lease had not been granted subject always to Sections 4, 5 and 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985...".
[2] The quarterly rent due on 1 May 2000 was not paid. The pursuers aver that on 10 May the outstanding balance remained due and that they then served on the defenders a notice of irritancy which is 6/5 of process. That document proceeded on the basis that the rent payable on 1 May had not been paid and purported to give the tenant notice of irritancy in terms of the lease if the outstanding rent was not paid by 14 May. It is to be noted that the rent was not in fact in arrears for twenty one days at the time of that notice. The defenders served a further notice on 2 June 2000 (6/6 of process) purporting to demand the removal of the defenders by not later than 9 June 2000. However the pursuers further aver at 10C that they again served a notice of irritancy on 2 June which expired at midnight on 16 June. The defenders did not make any payment.
[3] The pursuers' first conclusion is for declarator that the lease has been conventionally irritated and is at an end with effect from 25 May 2000. The averments about arrears, non-payment and irritancy are obviously somewhat muddled having regard to the narrative supra but even making the assumption that there was a new and separate notice of irritancy dated 2 June, the legal effect of these notices is subject to the same statutory provisions and, according to the defenders, they are invalid.
[4] It is also to be noted that the document 6/5 begins with the date 10 May. In the body of the document the notice itself was said to be dated 9 May. The recorded delivery proof of posting was also dated 10 May. Had the document been sent on the date which was within the notice, 9 May, there would have been no statutory defence if the rent was not paid by 14 May, always provided that the conventional irritancy was soundly based.
[5] The old law relating to conventional irritancies, that they could not be purged (Dorchester Studios (Glasgow) Limited v Stone & Another 1975 SC (H.L.) 56) was changed by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and in particular by section 4 thereof which reads:
"(1) A landlord shall not, for the purpose of treating a lease as terminated or terminating it, be entitled to rely -
(a) on a provision in the lease which purports to terminate it, or to enable him to terminate it, in the event of a failure of the tenant to pay rent, or to make any other payment, on or before the due date therefor or such later date or within such period as may be provided for in the lease; or
(b) on the fact that such a failure is, or is deemed by a provision of the lease to be, a material breach of contract,
unless subsection (2) or (5) below applies.
(2) This subsection applies if -
(a) the landlord has, at any time after the payment of rent or other payment mentioned in subsection (1) above has become due, served a notice on the tenant -
(i) requiring the tenant to make payment of the sum which he has failed to pay together with any interest thereon in terms of the lease within the period specified in the notice; and
(ii) stating that, if the tenant does not comply with the requirement mentioned in sub-paragraph (i) above, the lease may be terminated; and
(b) the tenant has not complied with that requirement.
(3) The period to be specified in any such notice shall be not less than -
(a) a period of 14 days immediately following the service of the notice; or
(b) if any period remaining between the service of the notice and the expiry of any time provided for in the lease or otherwise for the late payment of the sum which the tenant has failed to pay is greater than 14 days, that greater period.
(4) Any notice serviced under subsection (2) above shall be sent by recorded delivery and shall be sufficiently served if it is sent to the tenant's last business or residential address in the United Kingdom known to the landlord or to the last address in the United Kingdom provided to the landlord by the tenant for the purpose of such service".
[6] It is plain as a matter of ordinary construction that no conventional irritancy in the present circumstances could be enforced unless the provisions of the section were complied with. For present purposes the relevant provision is 4(3)(b). It is plain that the notice served on the defenders did not allow fourteen days since, by virtue of the provisions of section 7 of the Interpretation Act 1978 service by recorded delivery is deemed to be effected on the day following posting. The day following posting was 11 May and so the notice did not allow the appropriate fourteen days. It is accordingly invalid.
[7] The pursuers attempted to argue that the provision was intended to give notice of a state of affairs and that in section 4 of the 1985 Act, shall was equivalent of may. Counsel sought support from CIN Properties Limited v Dollar Land (Cumbernauld) Limited 1990 2 S.C.(H.L.) 104 and the view taken by a sheriff in Bellevue Cash & Carry v Singh 1996 G.W.D.4-220. CIN Properties in my view does nothing to assist the pursuers. So far as the Sheriff Court decision is concerned, it may be that that case was simply concerned with whether it was necessary to put the pursuers to proof of service If so, that is a situation governed by the Interpretation Act. If the sheriff intended to go further then in my view he was in error. The Court cannot innovate upon a mandatory provision in an Act of Parliament (see for example Rae v Davidson 1954 S.C.361 and, as illustration, although in a case involving a public body as opposed to a private citizen, the dicta in the Opinion of the Lord Chancellor in London & Clydesdale Estates Limited v Aberdeen District Council 1980 S.C.(H.L.)1).
[8] The Court observes that not only do statutory requirements require to be met strictly in relation to the service of notice, but also that conventional provisions equally have to be strictly followed, (see for example Muir Construction Limited v Hambly Limited 1990 S.L.T.830).
[9] The Court was also addressed on the pursuers' conclusion relating to the claim for violent profits. Because of the view taken above, it is not necessary to consider that argument. Had it been necessary to do so I would have sustained the defenders' pleas to the relevancy of the averments relating thereto. A claim for violent profits does not arise while the tenant is contesting (provided he has a probabilis causa), the validity of the pursuers' entitlement to terminate the lease. (See Rankin Leases page 583 and HMV Fields Properties Limited v Skirt'n'Slack Centre of London Limited 1987 S.L.T.2 per Lord Clyde at page 3K-L).
[10] On the whole matter I dismiss the action, no entitlement of any kind having been averred to support the conclusion for declarator of irritancy or decree of removing. I sustain the defenders' first, third and fourth pleas-in-law and dismiss the action.
