Baillie v Savage, Court of Appeal - Chancery Division, November 06, 2018, [2018] EWHC 3035 (Ch)

Resolution Date:November 06, 2018
Issuing Organization:Chancery Division
Actores:Baillie v Savage
 
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Case No: CH-2017-000297

Neutral Citation Number: [2018] EWHC 3035 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

OF ENGLAND AND WALES

CHANCERY DIVISION

Royal Courts of Justice

7 Rolls Building, Fetter Lane,

London, EC4A 1NL

Date: Tuesday, 6 November 2018

Before :

MR JUSTICE HENRY CARR

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Between :

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MARK DENCER (instructed by Whitehead Monckton) appeared for the Defendant/Appellant

DAVID SAVAGE appeared in person

Hearing dates: 6 November 2018

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JudgmentMr Justice Henry Carr:

Introduction

  1. This is an appeal by the Second Defendant (``Mr Baillie'') from the Order of District Judge William Jackson made on 23 November 2017, whereby he ordered that there be judgment against Mr Baillie on the Claimant's claim in the total sum of £18,059 inclusive of interest, together with release of a deposit of £2025. District Judge Jackson further ordered that the Mr Baillie pay £10,000 to Mr Savage on account of costs. The appeal is concerned with the interpretation of a rent suspension clause, which was successfully relied on by Mr Savage at trial.

  2. I gave an unreserved judgement on this appeal and neither party wished for a transcript. However, since the decision may be relevant to the interpretation of rent suspension clauses in other tenancy agreements, I have set out my reasoning, somewhat more fully, in this approved judgment.

    The facts

  3. The background to this claim is as follows. In July 2008 Mr Savage entered into a tenancy agreement on a house and garden known as Ferndown in Charing, Kent. The tenancy agreement had a two year term, and no break clause. Mr Savage paid all of the rent (approximately £34,000) in advance. Some four months later, a part of one of the garden walls collapsed onto a path in front of it.

  4. Before the collapse of this part of the wall, Mr Savage had contacted the letting agents, Ashton Burkinshaw Ltd on a number of occasions between July and November 2008. He drew their attention to the fact that the wall was bulging and that action needed to be taken before it collapsed. The letting agents agreed, but no action was taken.

  5. On 10 November 2008, part of the wall collapsed causing the passage to the side of the property to become blocked by rubble and causing damage to the pipe supplying the heating system to Ferndown.

  6. Mr Savage again contacted Ashton Burkinshaw and explained to them that the material (earth) that the retaining wall was holding was continuing to fall; that cracks had appeared in the walls of the property and were continuing to grow; that the kitchen floor was bulging; and that the remainder of the surviving wall was bulging and leaning. He stressed the urgency of the matter and the potential risks to which he and his partner were exposed to as a result.

  7. On 20 January 2009, Mr Savage wrote to Ashton Burkinshaw recording his concerns about Ferndown's suitability for further safe occupation. He drew the letting agent's attention to his concerns as to the remaining retaining wall and stated that the car port and garage rear walls were showing clear signs of distress.

  8. In February 2009, Mr Savage instructed his own structural engineer to prepare a report on the status of Ferndown. Following a site visit on 4 February 2009, Mr Tree, the structural engineer, concluded that it was apparent that there remained a serious problem with the rear slope and embankment to the property and that it was possible that the distressed wall to the...

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