Two further cases on mistakes, following the recent House of Lords decision in Kleinwort Bension v Lincoln City Council, which overturned a 200 year old rule, and allowed recovery of money paid following a mistake as to law.
Nurdin & Peacock plc v DB Ramsden and Co Ltd
Facts
: A lease granted by DB Ramsden required additional payments to be made by the tenant in the fourth and fifth years on the quarterly rent payment dates. Nurdin & Peacock then took over the original tenant company and continued to make the additional payments beyond the end of the fifth year. It then questioned whether the additional payments were still payable but continued to pay them as demanded.Held
: Nurdin & Peacock were entitled to recover the first five additional payments because they had been paid following its mistaken belief of fact that it was liable to pay the extra money. The last five overpayments were made after Nurdin & Peacock had contended that the additional payments were no longer due but then paid the extra money in the mistaken belief that it would be recoverable once the meaning of the lease was settled. This money, paid under a mistake of law was recoverable following the decision of the House of Lords in Kleinwort Benson v Lincoln City Council. The money was recoverable because the mistake of law related closely to the overpayment and wouldn't have been paid if Nurdin & Peacock hadn't made the mistake as to the law in the first place.Universities Superannuation Scheme Ltd v Marks & Spencer plc
Facts
: Marks & Spencer's lease from their landlord, USS, provided for them to pay service charge as certified by the landlord. For the service charge years ending 31 March 1992 and 1993 Marks & Spencer paid the money certified as owing by USS. USS then discovered that it had miscalculated the amount of the service charge. Marks & Spencer refused to pay the shortfall, arguing that it had met its contractual liability to pay the service charge when it had paid the service charge set out in the certificates.Held
: The service charge provisions had to be interpreted so as to fulfil rather than defeat their purpose. Although the lease contained provisions for the tenant to challenge the service charge certificate within a limited time, this in now way restricted the landlord's right to review its own certificate, make corrections and recover any shortfall.This note is intended to provide general information about developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained. If you would like further information or specific advice, please contact Macfarlanes.
