Innovate Logistics Ltd v Sunberry Properties Ltd [2008] EWCA Civ 1630

[2008] EWCA Civ 1630Case No A3/2008/1805
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HHJ SIMON BROWN QC (sitting as an additional judge of the Chancery Division)
No 9267/2008
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/11/08
Before
LORD JUSTICE MUMMERYLORD JUSTICE WALLLORD JUSTICE STANLEY BURNTON
Between
INNOVATE LOGISTICS LIMITED (in administration)AppellantSUNBERRY PROPERTIES LIMITEDRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
MR SIMON MORTIMORE QC , MS JANET BIGNELL and MS BLAIR LEAHY (instructed by Jones Day) for AppellantMR GABRIEL MOSS QC and MS KATHERINE HOLLAND (instructed by Pinsent Masons LLP) for RespondentHearing Hearing date: 1 st August 2008
Judgment
[1]At the end of the hearing on 1 August 2008 the court announced its decision to allow the appeal. The parties were informed that the reasons for the decision would be put in writing and handed down at a later date. The court would then receive written submissions on costs and ancillary matters.[2]The court granted permission for written submissions to be made in relation to Sunberry’s contentions that- i) The administrators should be directed to pay Sunberry interest at the contractual rate on unpaid rent due under the Lease from 30 June 2008 until YHL vacates, currently expected to be by 10 October 2008; ii) Permission should be granted pursuant to paragraph 43(6) of Schedule B1 to commence proceedings against the Company on or after 11 October 2008.[3]The court has considered the Administrators’ supplemental written submissions dated 6 August 2008 and Sunberry’s supplemental written submissions received on the 11 August 2008.[4]For reasons that will be given in the reasoned judgments to be handed down in due course the court has decided that- i) For the period down to and including 10 October 2008 or such earlier date on which YHL delivers up possession to the Administrators the Administrators should pay to Sunberry the monthly payments of the licence fee which YHL is required to pay to the Company, such fee being equal to 1 month’s passing rent under the Lease, together with any interest that has been earned by the Company on the said license fee: ii) It would be premature for the court to grant Sunberry leave to commence the proposed proceedings against the Company on or after 11 October 2008; iii) Sunberry is granted liberty to apply to lift the stay on proceedings in the event of any payment due from the Administrators to Sunberry not being made as required above.[5]The court declines to order the Administrators to pay to Sunberry the full contractual rent as set out in the Lease apportioned from the start of the Company’s period of administration to 11 October 2008 or to pay interest on overdue sums at the contractual rate payable.[6]I agree.[7]I also agree.