11 Wolsey Grove, Esher, Surrey KT10 8NU Case Reference : CHI/43UB/LAC/2018/0011 CHI/43UB/LAC/2018/0011
DECISION
[17]Starting with the first ground of challenge, the question is whether the charges raised are payable given the terms of the covenant at clause 2(e) of the Lease set out in full at paragraph 1 above.[18]On the papers before the Tribunal, the charges are not within the scope of the covenant and so are not recoverable.[19]There is no evidence at all to suggest that the work of Mr Watt or his solicitor was done with a view to forfeiture. On the contrary, there is no mention at all of forfeiture in Mr Watt’s correspondence, his statements of case to the Tribunal or the invoice from his solicitor describing the work said to have been carried out. Rather, all efforts seem to have been directed at chasing payment. But chasing payment is not a step taken for the purposes of or incidental to the preparation and service of a s.146 notice. It is not an act done with a view to forfeiture. 5[20]There is a further reason why the sum of £300 charged in respect of Mr Watt’s time is not within the scope of the covenant. The covenant requires payment of costs “incurred”. And there is no evidence that the Landlord incurred a cost of £300 by way of payment to Mr Watt.[21]There must also be significant doubt as to whether the sum of £250 plus VAT charged in respect of the solicitor was in fact incurred by the Landlord. In that respect there are the following oddities:21.1 The invoice from the solicitor, Mr A Adoki, is not a VAT invoice and yet Mr Watt sought for the Landlord payment of £250 plus VAT.21.2 The invoice has the following remarkable title: “Professional Fee’s of Mr A.Adok1”. The solicitor appears to have spelled his own name incorrectly on an apparently standard invoice by using a digit, and described his charges as “Fee’s”.21.3 Whereas the invoice is for “time spent 1 hour”, Mr Watt’s statement to the Tribunal dated 21 July 2018 gives, as part of a detailed breakdown of the costs sought, the time spent as 45 minutes.21.4 It is, in any event, difficult to see how 1 hour could be spent discussing non- payment of 2 demands for ground and insurance rent totalling £759.84.[22]However, it would not be right to find on a paper determination that this cost was not in fact incurred. Had this issue been determinative of the case, there would need to be a hearing.[23]Turning to the second ground of challenge, there is no suggestion in the papers before the Tribunal that a summary of rights and obligations as required by paragraph 4 of Schedule 11 to the 2002 Act was sent with the demand for the charges of £600. The consequence is that, even if they had fallen within the scope of the covenant, they would not be payable.[24]As to the third ground of challenge, namely reasonableness or otherwise of the charges, it is not necessary given the conclusions above, and would be highly artificial, to attempt a decision on that question. Questions of reasonableness are fact sensitive. Here, where the costs were not incurred for the purposes stated in the covenant and were not, at least in part and perhaps in whole, incurred at all, it is not the right course to embark upon a determination of whether, had they been, they would have been reasonable. 6 Costs and fees in the Tribunal[25]The Tenant’s application extends to asking for an order reducing or extinguishing any liability she may have under the Lease to pay the costs of these proceedings. The Tribunal may make such an order under paragraph 5A of Schedule 11 to the 2002 Act.[26]It is just and equitable to make such an order in this case. The Tenant has been entirely successful. She should not have to bear, under the Lease or otherwise, the Landlord’s costs of resisting her challenge to its charges.[27]It is also right that, having been successful, she should have an order under rule 13(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for the Landlord to reimburse her fee for this application to the Tribunal. That fee was £100. Summary[28]From the above, the Tribunal:28.1 Determines that the charges of £600 made by the Landlord relying on clause 2(e) of the Lease are not payable.28.2 Orders that any liability of the Tenant under the Lease for the costs of these proceedings is extinguished.28.3 Orders that the Landlord must reimburse the Tenant the sum of £100, being her fee for this application to the Tribunal Judge A Johns QC 30 November 2018 Appeal(1) A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.(2) The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.(3) If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit. The Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed. 7(4) The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.