Malone & Ors v Bircham & Co Nominees (No.2) Ltd & Ors [2003] EWHC 3173 (Ch) (19 December 2003)

Malone & Ors v Bircham & Co Nominees (No.2) Ltd & Ors [2003] EWHC 3173 (Ch) (19 December 2003)

The transfer of legal title to the Garden was valid and not prohibited by the EMS; the purported transfer of EMS powers to Visortuning Ltd by lease was invalid without Executive Committee or LVT approval; the Landlord is not required to contribute a capital rate; legal costs of the dispute are not recoverable as expenses under the Garden Agreements or EMS; and only specified categories of income must be credited against expenses, with other categories depending on circumstances.

Citation
[2003] EWHC 3173 (Ch)
Parties
Claimant: Frederick Roland Malone; Claimant: Carol Collins Malone; Claimant: Smadar Goldstein; Defendant: Bircham & Co Nominees (No.2) Ltd; Defendant: Sarah Elizabeth Stowell; Defendant: Visortuning Ltd
Jurisdiction
England and Wales
Judgment Date
19 December 2003
Procedural Posture
Chancery Division High Court Civil Claim / Judgment After Trial of Agreed Issues
Outcome
Declarations granted in accordance with the judgment; some claims refused; parties to agree consent order on resolved issues.
Legal Topics
Estate Management Schemes, Leasehold Enfranchisement, Service Charges, Delegation of Management Powers, Interpretation of Covenants
Property Law Landlord and Tenant Trusts Estate Management Schemes Leasehold Enfranchisement Service Charges Delegation of Management Powers Interpretation of Covenants

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Parties

Frederick Roland Malone

Claimant

Carol Collins Malone

Claimant

Smadar Goldstein

Claimant

Bircham & Co Nominees (No.2) Ltd

Defendant

Sarah Elizabeth Stowell

Defendant

Visortuning Ltd

Defendant

Procedural Posture

Chancery Division High Court Civil Claim / Judgment After Trial of Agreed Issues

Legal Issues

  1. 1 Whether transfer of legal or beneficial ownership of the Garden without Executive Committee or LVT approval was valid under the EMS
  2. 2 Whether lease of the Garden to Visortuning Ltd transferring EMS powers without approval was void or voidable
  3. 3 Whether the Landlord under the EMS must contribute a capital rate to the Garden budget

Ratio Decidendi

The transfer of legal title to the Garden was valid and not prohibited by the EMS; the purported transfer of EMS powers to Visortuning Ltd by lease was invalid without Executive Committee or LVT approval; the Landlord is not required to contribute a capital rate; legal costs of the dispute are not recoverable as expenses under the Garden Agreements or EMS; and only specified categories of income must be credited against expenses, with other categories depending on circumstances.

Court Disposition

Declarations granted in accordance with the judgment; some claims refused; parties to agree consent order on resolved issues.

Orders

  • Declaration that transfer of legal title to the Garden was valid under the EMS.
  • Declaration that transfer of EMS powers to Visortuning Ltd by lease was invalid without approval.