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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Xenakis & Anor v Birkett Long LLP  EWHC 171 (QB) (03 February 2014)
Cite as:  EWHC 171 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MICHAEL XENAKIS
|- and -
|BIRKETT LONG LLP
Mr Adam Rosenthal (instructed by Henmans Freeth LLP) for the Defendant
Hearing dates: 21-23 January 2014
Crown Copyright ©
Mrs Justice Andrews:
"It takes a few days for my clients to have documents executed as they have to be sent to Guernsey. Accordingly, he has suggested that if you send me your clients' parts of the documentation duly executed before you go on holiday together with payment of your client's agreed contribution to the fixtures and fittings and payment of my client's surveyor's fees for reviewing the fit out works then the keys can be released in readiness for exchange next week/on your return to the office. Please also confirm in your covering letter that the documentation is released to me unconditionally."
"The Sureties will be released either [sic] three years from the date of the Lease. However please note that should a liquidator disclaim the Lease or the Landlord forfeit the Lease during that three year period the Landlord may require Michael Xenakis and/or Chris Corke to take a new lease of the Premises in the same terms as the Lease and that lease will continue for the remainder of the twenty year term."
The word "either" is probably a typing mistake for "after".
1. Agreement for Lease
2. Counterpart Lease
3. Counterpart Licence
4. Counterpart Rent Deposit Deed.
The documentation is released to you when you are in a position to complete all four documents and on the basis that the term commencement date will not be before 23 January 2006 and that the rent commencement date will not be before 23 July 2006."
Liability and Causation
"The Agreement for Lease is the document we agreed to when it was anticipated there would be a long lead in time between Blue & Ginger committing to the Lease and the Lease itself being completed. We would suggest that the Agreement for Lease still be entered into, and the appended copy should be read carefully and the following noted…
Michael Xenakis and Chris Corke are to be parties to the Agreement for Lease to ensure that Blue & Ginger perform their obligations under the Agreement."
"I do not believe that any commercial conveyancer would have acted differently from the way I did. It was not within either my own or the Landlords' solicitors contemplation that completion would be delayed until December 2006, the delay being exacerbated by the introduction of Prescribed Clauses and I had no reason therefore to link the period of the surety covenants to the term commencement date while negotiating the term of the lease. This is especially so, as term commencement dates sometimes pre-date the date of a lease for various reasons."
"I can take risks but the risk has to be measured. If I thought they would sign next week or the week after I would have signed of course…. If [Mrs Masters] said "you will get the documents next week or the week after" I would have signed. If she had said "I have no control, and I don't know when they will sign" I would not have signed because it was open-ended. I need to know the end."
"I wouldn't have been concerned if she had told me there was going to be a gap between our going in and the Landlord signing. But if she told me that the Guarantee wouldn't start until they signed, I would have asked her what we could do to force them to sign because then the Landlord could keep us on the hook indefinitely."
"Michael expressed concern and asked again for ways to reduce expenditure further without effecting (sic) the performance of the lease
Chris stated that a substantial amount of cash will be required to fund The Forum operation".