Singh v Rainbow Court Townhouses Ltd

Acquiescence or waiver in the enforcement of estate-wide restrictive covenants depends on whether the claimant’s conduct represented that the covenants were no longer enforceable. Isolated failures to object, without knowledge of the detail of the works, do not ordinarily amount to that representation. For a mandatory injunction after breach, the court must assess the fair result, weighing the benefit to the claimant against the detriment to the defendant and considering proportionality, the circumstances after breach and the proper form of order. Allegations that comparable works were accepted elsewhere may be relevant both to acquiescence and to the scope of relief. Summary judgment is inappropriate where such issues, the status or notice of governing guidelines, or the nature of the breaches remain arguable.

The appellant owned a townhouse subject to lease covenants requiring approval for alterations. The respondent management company sought declarations, damages and mandatory injunctions after works were carried out without prior written approval. Pemberton J granted summary judgment on the papers and ordered the relief sought. The Court of Appeal dismissed the appeal, finding no real prospect of success, and later granted conditional leave to appeal to the Privy Council.

The appeal concerned the arguability of defences based on acquiescence or waiver, the alleged nuisance and damages, the discretionary basis for mandatory relief, and the company’s standing despite having no proprietary interest in the land.

The Board allowed the appeal unanimously. Lord Carnwath delivered the judgment, with whom Lord Reed, Lord Kerr, Lord Hughes and Lady Black agreed.

1. Standing. The respondent technically lacked title to enforce the lease covenants because the relevant interest remained with the lessor. The decision in 89 Holland Park (Management Ltd) v Hicks [2013] EWHC 391 (Ch) did not assist, since it concerned successors in title and owners or occupiers for the time being under section 78 of the Law of Property Act 1925. The defect caused no prejudice, could have been cured by amendment, and was raised too late for the first time in the Court of Appeal.
2. Acquiescence and waiver. The Board adopted the approach of Farwell J in Chatsworth Estates Co v Fewell [1931] 1 Ch 224. The question was whether the claimant’s acts or omissions represented that the covenants were no longer enforceable. Individual breaches being overlooked did not automatically establish such a representation. The October discussions and the letter of 18 November 2014 could not reasonably be understood in that way. The officers had received no detailed information, and the letter arrived after most of the work was complete.
3. Mandatory relief. The equitable discretion governing a mandatory injunction requires consideration of the fair result, including the benefit to the claimant, the detriment to the defendant, triviality and disproportion. The Board applied the principles discussed in Shepherd Homes Ltd v Sandham [1971] Ch 340, with reference also to Charrington v Simons & Co Ltd [1970] 1 WLR 725.
4. Works at other properties which had apparently been accepted without objection were at least arguably relevant to waiver and, independently, to the scope and form of any mandatory order. The nature and significance of several alleged breaches, and the status and prior availability of the guidelines, required investigation. The judge had a duty to consider the detail of the breaches and the relief sought, not merely the general principle of the claim.
5. The defence concerning the prominent front pillars had no merit, but the overlapping issues concerning other works and relief remained arguable. The Board could not make a principled distinction between parts of the injunction because neither the pleadings nor the judgment had done so. The appeal was therefore allowed and the case remitted to the High Court.

• Privy Council: Appeal allowed and case remitted to the High Court: [2018] UKPC 19.
• Court of Appeal of the Republic of Trinidad and Tobago: On 9 May 2016 the appeal was dismissed. Conditional leave to appeal to the Privy Council was granted on 6 June 2016, and the order was suspended pending determination of the appeal.
• High Court: Pemberton J decided the matter on the papers on 7 December 2015, granted summary judgment and ordered the relief sought. The order was issued on 4 March 2016.