Assethold Limited v Nelio Patricio Teixeira Franco
[2022] UKUT 285 (LC)
Adam Davies v Benwell Road RTM Company Ltd
25 August 2023
[2023] UKUT 197 (LC)
Upper Tribunal
A tenant refused to pay a service charge, arguing he was owed money from previous years. The court decided he had to pay the charge, but the court's calculation of additional charges was wrong. The tenant won a partial victory as the court made errors in some of its calculations.
Key Facts
- •Dispute over a £616 service charge unpaid in 2014, escalating to £14,917 with interest and charges.
- •Appellant (Davies) claimed credit for sums paid in 2013 following dismissal of a County Court claim by the Respondent (RTM Company).
- •The FTT found Davies liable for £616.60 (service charge), £3240 (administration charges), and £418.70 (interest).
- •County Court judgment for £6,719.59 plus £8,197.50 costs.
- •Disputes centered on the effect of the 2013 County Court dismissal, an alleged agreement for a refund, liability for administration charges, the FTT's jurisdiction on costs, and a limitation defence.
- •The RTM Company's 2013 County Court claim was dismissed due to insufficient evidence of its right to manage Davies' property.
- •The FTT's 2014 decision established the RTM Company's right to manage but only addressed the 2014-15 service charge.
- •Davies claimed a credit for the 2013 payment based on the 2013 County Court dismissal and a purported agreement.
Legal Principles
Effect of dismissal of County Court claim on service charge liability.
Landlord and Tenant Act 1985, s.27A; Commonhold and Leasehold Reform Act 2002, Schedule 11.
Contractual interpretation of administration charges and their recoverability.
Lease agreement, paragraph 33 of Part II of the Sixth Schedule.
Limitation period for arrears of service charges.
Limitation Act 1980, section 19.
Appropriation of payments by a creditor.
Khandanpour v Chambers [2019] EWCA Civ 570
FTT and County Court jurisdiction on costs.
Tribunal, Courts and Enforcement Act 2007, s.29(1); Senior Courts Act 1981, s.51; Mayor and Burgesses of the London Borough of Tower Hamlets v Khan [2022] EWCA Civ 831.
Outcomes
Appeal allowed in part.
The FTT erred in finding Davies liable for the £616.60 service charge due to the limitation period expiring; the FTT incorrectly assessed administration charges and costs; and the FTT's decision on costs was flawed.
Davies liable for £616.60 service charge and £840 administration charges.
Despite the limitation issue regarding the service charge, the Upper Tribunal deemed it still valid due to circumstances.
FTT's decision on costs set aside.
The FTT lacked jurisdiction to fully assess costs and failed to consider Davies' application under paragraph 5A of Schedule 11, 2002 Act.
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