Landlord and tenant

Rent review - service of notice by landlord - provision for service of counter-notice - time for compliance of essenceStarmark Enterprises Ltd v CPL Enterprises Ltd; CA (Lords Justice Peter Gibson, Kay and Arden); 31 July 2001A rent review clause in a lease provided that if the lessee failed to serve a counter-notice within one month after receipt of the landlord's rent notice they would be deemed to have agreed to pay the increased rent specified in the rent notice.

The tenant served his counter-notice outside the time limit and the landlord claimed the rent stated in his notice.

The judge held that the notice was valid since the time for compliance was not of essence.

The landlords appealed.Kim Lewison QC and Thomas Grant (Beckman & Beckman) for the landlord; John Male QC and Timothy Morshead (Vizard Oldham) for the tenant.Held, allowing the appeal, that where the parties had clearly stipulated the consequences of a party's failure to serve a notice within the time as agreed by them, that was a contradiction rebutting the presumption that time was not of the essence; that therefore, where the ratio of an earlier decision was directly applicable to the circumstances of a case but that decision had been wrongly distinguished in a later decision of this court, it was open to the court not to apply the general principle of following the latter case which it found as wrongly decided; and that, accordingly, the counter-notice was invalid.