GEORGE COHEN, SONS & CO., LTD. v. DOCKS AND INLAND WATERWAYS EXECUTIVE.
(1950) 84 Ll.L.Rep. 97
COURT OF APPEAL.
Before Sir Raymond Evershed (Master of the Rolls), Lord Justice Asquith and Lord Justice Jenkins.
Landlord and tenant-Lease-Rectification - Specific performance - Covenant to repair-Mutual mistake-Lease entered into in 1924 between plaintiffs (or their predecessors in title) and defendants (or their predecessors in title) whereby defendants' quay, etc., was demised to plaintiffs for term of 21 years-Covenant by plaintiff lessees that they
shall and will at all times during the continuance of this demise as often as occasion shall require at their own expense well and sufficiently repair maintain uphold support paint cleanse and amend and keep the said premises and all erections buildings and fences which now are or shall hereafter be erected built or set up upon the same.
Covenant by defendant lessors
that they will within a reasonable time after the execution of these presents but in any event before the 24th June, 1924, repair and make good all the quay walls bounding the premises hereby demised and will during the term hereby created keep such quay walls in a fit and proper state.
Negotiations in 1943 as to renewal of lease (with additional premises)-
Arrangement between parties that new lease should be prepared by defendants' solicitor - Discussion as to terms - "Terms and conditions contained in the present lease to be embodied in the new lease where applicable"-Draft lease submitted to, and approved by, plaintiffs-Covenant by plaintiffs in new lease
at all times during the said term well and substantially to repair cleanse amend paint and maintain and keep in a good and substantial state of repair and condition the demised premises and all erections buildings cranes machinery equipment fixtures and premises as shall at any time during the continuance of the said term be in or upon the demised premises . . . and all waterway and other walls fences drains and gates and all other the demised premises with the appurtenances thereof.
Plaintiffs unaware that lessors' repair covenant (as contained in lease of 1924) was omitted from new lease-Collapse of quay wall in 1945-Liability for repair-Damages-Action brought by plaintiffs claiming declaration that now lease was not binding on them and should be set aside; specific performance of agreement evidenced by correspondence during negotiations; rectification of new lease by insertion of a repair covenant by lessors (in terms similar to those contained in lease of 1924) and by deletion of certain of lessees' obligations to repair-Plaintiffs' right to relief-Unilateral or mutual mistake - Onus of proof - Evidence of matters leading up to preparation of new lease - Intention of parties-"Terms where applicable"- Meaning.