Wolanski Co Trustees v. First Quench Retailing [2004] ScotSC 13 (13 February 2004)

Wolanski Co Trustees v. First Quench Retailing [2004] ScotSC 13 (13 February 2004)

The existence of waiver by acceptance of rent after service of an irritancy notice is a question of fact requiring proof, particularly as reliance by the tenant on the waiver must be established. The relevancy of the parties' averments, including those on waiver and the validity of the notices, can only be determined after an enquiry into the facts. Therefore, a proof before answer is allowed, with preliminary pleas reserved.

Citation
[2004] ScotSC 13
Parties
Pursuer: Wolanski & Co Trustees Limited; Defender: First Quench Retailing Limited
Jurisdiction
Scotland
Judgment Date
13 February 2004
Procedural Posture
Commercial Action / Interlocutory; Proof Before Answer Allowed, Preliminary Pleas Reserved
Outcome
Proof before answer allowed; preliminary pleas reserved; no expenses due to or by either party in respect of the diet of debate.
Legal Topics
Irritancy of Lease, Waiver of Irritancy, Acceptance of Rent After Irritancy Notice, Validity of Irritancy Notices, Procedural Relevancy
Landlord and Tenant Commercial Leases Scottish Property Law Irritancy of Lease Waiver of Irritancy Acceptance of Rent After Irritancy Notice Validity of Irritancy Notices Procedural Relevancy

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 9 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Wolanski & Co Trustees Limited

Pursuer

First Quench Retailing Limited

Defender

Procedural Posture

Commercial Action / Interlocutory; Proof Before Answer Allowed, Preliminary Pleas Reserved

Legal Issues

  1. 1 Whether acceptance of rent after service of irritancy notice constitutes waiver of the right to irritate the lease
  2. 2 Whether the irritancy notices served were valid
  3. 3 Whether the defenders' averments regarding waiver and invalidity are relevant and should be admitted to proof

Ratio Decidendi

The existence of waiver by acceptance of rent after service of an irritancy notice is a question of fact requiring proof, particularly as reliance by the tenant on the waiver must be established. The relevancy of the parties' averments, including those on waiver and the validity of the notices, can only be determined after an enquiry into the facts. Therefore, a proof before answer is allowed, with preliminary pleas reserved.

Court Disposition

Proof before answer allowed; preliminary pleas reserved; no expenses due to or by either party in respect of the diet of debate.

Orders

  • Allows a proof before answer, reserving meantime parties' preliminary pleas.
  • Finds no expenses due to or by either party in respect of the diet of debate.