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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Arundel Corporation v Khokher  EWCA Civ 1784 (09 December 2003)
Cite as:  EWCA Civ 1784
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ ROGER COOKE
CENTRAL LONDON COUNTY COURT
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE TUCKEY
| ARUNDEL CORPORATION
|- and -
|MOHAMMED RAMZAN KHOKHER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR CHARLES DOUTHWAITE (instructed by Messrs Kingsley Napley) for the Respondent
Crown Copyright ©
Lord Justice Mummery :
"1. The Tenant within one month after the receipt of the Rent Notice may serve on the Landlord a counter-notice calling upon the Landlord to negotiate with the Tenant the amount of the rent to be paid as from the Review date.
2. If the Tenant shall not serve a counter-notice within the period specified he shall be deemed to have agreed to pay the rent specified in the Rent Notice.
3. If the Tenant shall serve on the Landlord a counter-notice calling upon the Landlord to negotiate with him then the parties shall forthwith consult together to reach agreement on the rent payable but failing agreement within one month after service of the counter-notice….the question of the amount of rent payable shall be referred to an independent surveyor (hereinafter called the "Surveyor") appointed by agreement between the parties or by the President of the Royal Institution of Chartered Surveyors on the application of the Landlord."
"10.The learned judge was misled by perjured evidence to make the finding of fact that the rent counter-notice was served by [Mr Khokher]. In fact, as was known by Mr Pattihis and Mr Blackburn of his solicitors, Healys, [Mr Khokher] never served the counter-notice at all, but falsely attested both in his written and oral evidence to having done so. His solicitor, Mr Pattihis also falsely attested in written and oral evidence that on or about 20 August 2000 he had advised [Mr Khokher] as to the form of the counter-notice and where it was to be served whereas no such advice was given in that date. Arundel seeks permission to rely on evidence newly disclosed to it by Naresh Bhatia, a trainee legal executive formerly employed by [Mr Khokher's ] solicitors, contained in his affidavit dated 19 February 2003 and the exhibits thereto, and to the statement of Ms Terry Straiton dated 6 March 2003 and the account therein of what Mr Kumrai, a solicitor formerly working at Healys, told her."
A. Service at last known Place of Business
" When any fact or circumstance, material to any transaction, business or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof as from the time when he would have received such notice if the agent had performed his duty, and taken such steps to communicate the fact or circumstance as he ought reasonably to have taken…"
" 13. As respects all periods of time referred to in this Schedule time shall be deemed to be of the essence of the contract PROVIDED ALWAYS that the Landlord or the Tenant may notwithstanding anything in this Schedule require the appointment of the Surveyor or any substitute Surveyor to determine the question of New Rent payable at any time after the commencement of each relevant period of years and any delay by the Landlord or the Tenant in this respect shall not deprive the Landlord or the Tenant of their respective right to have a New Rent determined by the Surveyor as set out herein."
B. Damages for not consenting to sub-lease