Carter & Anor v Cole & Anor [2006] EWCA Civ 398 (11 April 2006)

Carter & Anor v Cole & Anor [2006] EWCA Civ 398 (11 April 2006)

Clause 3.2 of the Transfer Deed does not exclude the Carters' right to repair the roadway; both parties are entitled to repair and maintain the roadway, and each is contractually liable to contribute the stipulated proportion of costs incurred by the other, provided the work is done to the specified standard. Contributions can only be claimed as and when sums become payable for works carried out, not in advance based on estimates.

Citation
[2006] EWCA Civ 398
Parties
Claimant/respondent: Terence Carter; Claimant/respondent: Jane Carter; Defendant/appellant: Jeffrey Cole; Defendant/appellant: Jacquelyn Cole
Jurisdiction
England and Wales
Judgment Date
11 April 2006
Procedural Posture
Civil Appeal / Appeal From Southend County Court Judgment
Outcome
Appeal dismissed with minor variation to the order
Legal Topics
Easements, Rights of Way, Repair and Maintenance Obligations, Construction of Deeds, Contribution to Costs
Property Law Contract Law Easements Rights of Way Repair and Maintenance Obligations Construction of Deeds Contribution to Costs

Case Brief

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Parties

Terence Carter

Claimant/respondent

Jane Carter

Claimant/respondent

Jeffrey Cole

Defendant/appellant

Jacquelyn Cole

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Southend County Court Judgment

Legal Issues

  1. 1 Whether both parties have the right to repair and maintain the roadway under clause 3.2 of the Transfer Deed
  2. 2 Whether either party can claim contribution to repair costs before the work is carried out or only after costs are incurred
  3. 3 Whether the Transferor's right to repair is excluded by the wording of clause 3.2

Ratio Decidendi

Clause 3.2 of the Transfer Deed does not exclude the Carters' right to repair the roadway; both parties are entitled to repair and maintain the roadway, and each is contractually liable to contribute the stipulated proportion of costs incurred by the other, provided the work is done to the specified standard. Contributions can only be claimed as and when sums become payable for works carried out, not in advance based on estimates.

Court Disposition

Appeal dismissed with minor variation to the order

Orders

  • Paragraph 8 of the judge's order varied to state that contributions may be claimed 'as sums due in respect of such works become payable'
  • All other parts of the judge's order upheld