“Redrow Regeneration (Barking) Ltd is engaged in the redevelopment and regeneration of Barking Town Centre. Phase 2 of the project is known as Barking Town Centre Square and comprises of 87 Axe Street, Lemonade Building, the Bath House and the Bike Shed, and that the Piano Works which contains commercial units that are separately managed. There are 272 units within Phase 2 including 18 Housing Association Units. 87 Axe Street contains 22 Private and 18 Affordable Units. Bath House contains 96 units and The Lemonade Building contains 136 units.”
“8. At the hearing it became apparent to the Tribunal and the parties, that there is a preliminary issue to be determined in respect of the nature and extent of the service charges contractually payable by the Tenants under the leases. The Preliminary Issue 9. The preliminary issue is whether, in view of the fact that the service charge have been calculated and demanded as a percentage of the costs relating to the Bath House, The Lemonade Building, and 87 Axe Street, the service charges under the applicants’ leases have not yet fallen due.”
“40. If, as the respondents’ claim (as shown by the basis of charge in the service charge accounts), the Development comprises Bath House, The Lemonade Building and 87 Axe Street, then the costs of ‘the Concierge and security services – salaries£80,000.00 ’ as shown on the 2009 service charge statement, would form part of the relevant service charge costs, notwithstanding that there is a limited Concierge service at 87 Axe Street as compared to Bath House. 41. The applicants have raised a prima facie case that the meaning of ‘the Development’ in the leases is unclear. The evidential burden of proof transferred to the respondents to show that under the leases the service charges can be calculated on the basis charged i.e. that ‘the Development’ comprises Bath House, The Lemonade Building, and 87 Axe Street… 42. The Tribunal did not find that The Development Plan, referred to by Mr Collingwood, assisted other than as a matter of general background. It is not a document referred to in the lease. In the Development plan, Phase 2 appears to comprise a number of buildings, of different sizes within an undefined area. In particular it was unclear whether unmarked areas, areas marked garden, or trees were included in Phase2… 44. The Tribunal considers that the use of the terms the Development and the Building are not interchangeable… 46. As currently drafted (and in the absence of rectification (if appropriate) or variation of the leases) the meaning of ‘the Development’ in the lease is uncertain. 47. The respondents have not shown on the balance of probabilities that the totality sums demanded for service charges have been calculated in accordance with the lease. 48. The Tribunal finds that in view of the fact that the service charge have been calculated and demanded as a percentage of the costs relating to Bath House, The Lemonade Building, and 87 Axe Street, the service charge payable under the applicant’s leases as currently calculated and demanded have not yet fallen due.”
“Lastly I would add a word to what Lord Justice Gross says in §76(ii) about the burden of proof. It is common for advocates to resort to this when the factual case is finely balanced; but it is increasingly rare in modern litigation for the burden of proof to be critical. Much more commonly the task of the tribunal of fact begins and ends with its evaluation of as much of the evidence, whatever its source, as helps to answer the material questions of law. In nine cases out of ten this is sufficient to resolve the contest. It is only rarely that the tribunal will need to resort to the adversarial notion of the burden of proof in order to decide whether an argument has been made out, and tribunals ought in my view not to be astute to do so: the burden of proof is a last, not a first, resort.”
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the ‘matrix of fact’, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception mentioned next, it includes anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification…”
“An informal residents association has been set up for another part of the development, the lemonade building because of ongoing hot water problems.”
“Whereas, Labyrinth is charging leaseholders for a 24 hour concierge service based in another part of the development, ‘Bath House’ (this cost should be pro-rata).”