Wolanski And Company Trustees Ltd v. First Quench Retailing Ltd [2008] ScotCS CSOH_50 (26 March 2008)

Wolanski And Company Trustees Ltd v. First Quench Retailing Ltd [2008] ScotCS CSOH_50 (26 March 2008)

Pursuer consented expressly to the assignation including step-in and guarantee provisions, making the third party authorized occupiers; defender's averments of implied term are irrelevant due to express lease provisions; defender's averments of material breach are sufficient to go to proof.

Citation
[2008] ScotCS CSOH_50
Parties
Pursuer: Wolanski & Co Trustees Limited; Defender: First Quench Retailing Limited; First Third Party: Big Mammy K Ltd; Second Third Party: Degreefresh Ltd; Third Third Party: Soulband Ltd
Jurisdiction
Scotland
Judgment Date
26 March 2008
Procedural Posture
Commercial Action (landlord and Tenant Dispute) / Opinion After Debate on Relevancy of Pleadings
Outcome
Pursuer's third argument upheld; passage in defender's pleadings relating to implied term excluded from probation; other arguments rejected; case to proceed for further procedure.
Legal Topics
Landlord and Tenant, Lease Assignation, Implied Terms, Acquiescence, Material Breach
Property Law Contract Law Landlord and Tenant Lease Assignation Implied Terms Acquiescence Material Breach

Case Brief

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Parties

Wolanski & Co Trustees Limited

Pursuer

First Quench Retailing Limited

Defender

Big Mammy K Ltd

First Third Party

Degreefresh Ltd

Second Third Party

Soulband Ltd

Third Third Party

Procedural Posture

Commercial Action (landlord and Tenant Dispute) / Opinion After Debate on Relevancy of Pleadings

Legal Issues

  1. 1 Whether pursuer consented expressly or impliedly to assignation of sublease to guarantors
  2. 2 Whether pursuer breached implied term by failing to refer to defender before removing occupier
  3. 3 Whether defender made relevant averments of material breach justifying rescission

Ratio Decidendi

Pursuer consented expressly to the assignation including step-in and guarantee provisions, making the third party authorized occupiers; defender's averments of implied term are irrelevant due to express lease provisions; defender's averments of material breach are sufficient to go to proof.

Court Disposition

Pursuer's third argument upheld; passage in defender's pleadings relating to implied term excluded from probation; other arguments rejected; case to proceed for further procedure.

Orders

  • Exclude passage in answer 5 of defences relating to implied term from probation.
  • Case put out by order for further procedure.