The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief.
Held: There was no arguable defence and summary judgment was granted. The measuring system proposed though not developed at the time of the lease was clearly a system of the sort provided for by the lease, and: ‘it is not possible to imply into the Lease the term pleaded in the Amended Defence to the effect that the dispensing equipment referred to in the Reservation is limited to dispensing equipment and equipment ancillary thereto the sole purpose of which is to facilitate and ensure the safe dispensing of beer and cider of an appropriate quality, or any similar term.’ Nor was the 1985 Act engaged, since the system was not being used, in providing that information, ‘in connection with’ the sale and purchase of beer and cider under the relevant transaction or transactions.
‘a contractual discretion must be exercised honestly and in good faith and must not be exercised arbitrarily, capriciously or unreasonably, unreasonableness being assessed in the sense that no reasonable person would exercise the discretion in the manner proposed. Sometimes the courts appear to approach these restrictions by way of implication. In others, they appear to approach the matter of one of construction. It does not matter which approach is more accurate, especially as the implication is, in any case, a facet of construction’
Warren J
[2012] EWHC 2154 (Ch)
Bailii
Weights and Measures Act 1985 7 17
England and Wales
Citing:
See Also – Unique Pub Properties v Onifas Limited ChD 2011
Enterprise owned the reversion on the lease of a public house, The Bedford, in Balham, having taken as assignment of that reversion from Unique. Onifas Ltd was the tenant. Unique had installed a ‘DMS’ flow measurement system at The Bedford in 2006. . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Ludgate Insurance Company Limited v Citibank NA CA 26-Jan-1998
Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 31 October 2021; Ref: scu.463302