Rainbow Estates Ltd v Tokenhold Ltd & Anor, Court of Appeal - Civil Division, August 26, 1998, [1998] EWCA Civ 1412 - Case Law - VLEX 52585881

Rainbow Estates Ltd v Tokenhold Ltd & Anor, Court of Appeal - Civil Division, August 26, 1998, [1998] EWCA Civ 1412

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IN THE SUPREME COURT OF JUDICATURE SLJ 98/6170/3

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(MR LAWRENCE COLLINS QC SITTING AS A DEPUTY JUDGE)

Royal Courts of Justice

Strand

London WC2

Wednesday, 26 August 1998

B e f o r e:

LORD JUSTICE CHADWICK

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RAINBOW ESTATES LTD

Plaintiff/Applicant

- v -

(1) TOKENHOLD LIMITED

(2) HERMAN HERSKOVIC

Defendants/Respondents

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR M WARWICK (Instructed by Philippsohn Crawfords Berwald, London, WC1V 7JG) appeared on behalf of the Applicant (Plaintiff)

MR D STANCLIFFE LEGAL ASSISTANT REPRESENTING THE SECOND DEFENDANT of Messrs Abrahamson & Associates, London, NW11 7PH appeared on behalf of the Respondent (Second Defendant)

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

LORD JUSTICE CHADWICK: The applicant, Rainbow Estates Limited, is respondent to appeals brought by Tokenhold Limited and Mr Herman Herskovic against the order made in this action on 4 March 1998 by Mr Lawrence Collins QC, sitting as a Judge of the Chancery Division. By the present application Rainbow Estates seeks security from each appellant for the costs of those appeals.

The underlying facts may be stated shortly. Mr Herskovic claimed to be entitled to a leasehold interest in property known as the Eastern Annexe, Gaynes Park Mansion, Epping, Essex, under a lease granted on 15 December 1987 by Venrich Limited, a company formerly owned by Mr Herskovic and his brother. Tokenhold Limited claims to be entitled to a leasehold interest in respect of the remainder of the same mansion house under a lease also granted by Venrich Limited on the same day, 15 December 1987. The rent reserved under each lease was £5,000 per annum, payable yearly in advance. Each lease contained a covenant by the tenant to keep and maintain the property in good and tenant like repair throughout the term. The term of each lease determines on 14 December 2004 without proviso for re-entry.

On or about 5 November 1996 the reversion immediately expected upon the determination of each of the two leases became vested in Rainbow Estates Limited. At or about the same time the arrears of rent under the two leases, together with the right to sue for and recover those arrears, were assigned (or purportedly assigned) to Rainbow Estates.

It appears to have been common ground that no rent was paid under either lease in the years 1991 to 1996 (both inclusive). Indeed the tenants assert that, notwithstanding the provisions in the leases themselves, they were each excused from payment of any rent under a collateral agreement made with Venrich on 17 November 1987 - that is to say shortly before the grant of the leases themselves.

The present proceedings were commenced by the issue of a writ on 25 April 1997. Rainbow Estates, as plaintiff, claimed against each defendant, in respect of the lease under which it or he was tenant, arrears of rent in the amount of £30,000 - being the rent for the six years prior to the commencement of the proceedings - with interest thereon; and orders that each defendant do carry out works of repair specified in a schedule of dilapidations. The writ was followed by a summons for summary judgment. In an interim judgment given on 10 December 1997 Mr Collins QC held that the tenants were bound by the tenant's repairing obligations in the leases, notwithstanding a contention that those obligations had been varied by the same collateral agreement. The Judge gave a further judgment on 4 March 1998 in which he held that the Court had power to order specific performance of tenant's repairing covenants in a lease; and that, in the particular circumstances of this case, orders for specific performance were appropriate. He gave judgment against each defendant severally in the sum of...

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