Wilderbrook Ltd v Oluwu [2005] EWCA Civ 1361 (16 November 2005)

Wilderbrook Ltd v Oluwu [2005] EWCA Civ 1361 (16 November 2005)

The proviso in paragraph 13 of the rent review schedule is sufficiently broad and ambiguous to prevent the deeming provision in paragraph 2 from being a clear and explicit contra-indication that time is of the essence. Therefore, the presumption that time is not of the essence applies, and the late counter-notice does not result in deemed agreement to the new rent. 'Receipt' of the notice occurs upon delivery to the premises, not actual notice by the tenant.

Citation
[2005] EWCA Civ 1361
Parties
Appellant: Wilderbrook Ltd; Respondent: Oluwu
Jurisdiction
England and Wales
Judgment Date
16 November 2005
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Rent Review, Interpretation of Lease Clauses, Time of the Essence, Deeming Provisions
Landlord and Tenant Contract Law Rent Review Interpretation of Lease Clauses Time of the Essence Deeming Provisions

Case Brief

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Parties

Wilderbrook Ltd

Appellant

Oluwu

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the proviso in paragraph 13 of the rent review schedule overrides the deeming provision in paragraph 2 regarding time limits for serving a counter-notice
  2. 2 Whether 'receipt' of the rent review notice means delivery to the premises or actual notice by the tenant or agent

Ratio Decidendi

The proviso in paragraph 13 of the rent review schedule is sufficiently broad and ambiguous to prevent the deeming provision in paragraph 2 from being a clear and explicit contra-indication that time is of the essence. Therefore, the presumption that time is not of the essence applies, and the late counter-notice does not result in deemed agreement to the new rent. 'Receipt' of the notice occurs upon delivery to the premises, not actual notice by the tenant.

Court Disposition

Appeal dismissed

Orders

  • No declaration granted in favour of the landlord
  • The respondent's notice on the meaning of 'receipt' is dismissed