The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth boats. It had originally said that debenture holders would be able to transfer and sub-licence their rights. The company was concerned that casual and temporary users and licencees were less likely to use its associated boat businesses at the marina. The company had taken a policy, not provided for in the contract of itself taking the right to sell any berth which became available through, as in this case, the death of the member. The claimant sought clarification through the court after the defendant had sought to create sub-licences otherwise than in the manner it said had been agreed, and sought revocation.
Held: The consent to the assignment had not been obtained by misrepresentation. The court construed the agreement. The agreement was in many ways derived from leases, but in practice was a one-off. There was no right in the claimant to limit repeated sub-licences. The claimant did not have the right to refuse sub-licences for reasons not associated with the proposed sub-licensee: ‘It cannot have been the intention of the parties that LML having granted the licences for a term of 98 years should be able to frustrate their transfer whether by assignment or by a sub-licence on grounds unconnected with the proper operation of the licence . . .’ To allow the claimant to grant sub-licences as it sought would be to re-write the agreement. ‘There is no duty as such to give reasons for refusing consent but the absence of good reasons which conform to the grounds for refusal permitted under clause 3(k) may be taken as indicating that no proper reasons exist.’
Patten J
[2006] EWHC 704 (Ch)
Bailii
England and Wales
Citing:
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Price v Bouch 1986
The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld.
Held: A term that consent would . .
Cited – Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) CA 1-Mar-2002
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the . .
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 – 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, . .
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 – Killick v Second Covent Garden Property Co Ltd CA 1973
The belief of the landlord, however reasonable, that the proposed assignee intended to use the demised premises for a purpose which would give rise to a breach of the user covenant was not of itself a ground for withholding consent to assignment. . .
Cited – Ashworth Frazer Limited v Gloucester City Council HL 8-Nov-2001
A lease contained a covenant against assignment without the Landlord’s consent, such consent not to be unreasonably withheld. The tenant asserted, pace Killick, that the landlord could not refuse consent on the grounds that the proposed tenant might . .
Cited by:
Appeal from – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant
Updated: 13 December 2021; Ref: scu.240114