Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 71
A752/07	OPINION OF J BECKETT QC (Sitting as a Temporary Judge) in the cause TALIB AL-SODANI LAZIM Pursuer; against JAHANGIR CHAUDHRY Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defender: Sandison QC; Currie Gilmour & Co

27 April 2012

Introduction

[1] I heard the proof before answer in this action, which was raised in 2007, in which the pursuer seeks delivery of certain items of equipment which he used in the course of running a take-away food business from 122 Carnethie Street, Rosewell of which the defender was the landlord. In the alternative, the pursuer seeks payment of £34,709.48. The pursuer was not represented and the defender was represented by Mr Sandison QC who had a long connection with the case.

[2] When the action was first raised, the pursuer sought declarator in two conclusions: that the defender was not entitled to withhold consent to the assignation of a lease from certain other parties to the pursuer and that the pursuer was entitled to occupy the premises in terms of an assignation and lease; and declarator that the defender had acted unreasonably in withholding consent to the assignation of the lease to the pursuer and that the pursuer was entitled to occupy the premises. Those conclusions were deleted by adjustment by agents then acting for the pursuer when it became apparent that the defender's tenants had renounced their interest in the lease.

[3] The third conclusion sought "delivery by the defender to the pursuer of (a) a Caponi pizza oven (b) a Henry Nattal frying range (c) two fridge freezers, and (d) shelving and utensils failing delivery for payment by the defender to the pursuer of the sum of twenty six thousand pounds". That figure was altered by way of adjustment, and not by amendment as it should have been, so that in the closed record, no. 17 of process, it is now £34,709.48. No objection was taken to this procedure by the defender and it was on this conclusion that the action continued.

Facts which were not in dispute

[4] The following undisputed facts are established from the record, those productions which were not subject of challenge, and evidence which was not challenged.

4.1 The defender is, and was at the material times, the owner of fast food premises at 122 Carnethie Street, Rosewell (the premises). In 2002, he let the premises to Mahmood Khalid and Hanif Umar (the tenants).

4.2 The defender allowed an informal arrangement whereby the tenants let the premises to the pursuer, but the defender would not assign the lease to the pursuer.

4.3 The pursuer opened for business in February 2004. The pursuer installed a pizza oven, a frying range, two fridge freezers, and equipped the premises with utensils which belonged to him.

4.4 On 8 or 9 December 2006 the premises were damaged by a fire caused by third parties unknown.

4.5 The pizza oven and frying range were not destroyed in the fire.

4.6 The defender did not allow the pursuer to resume occupation of the premises after the fire.

4.7 On 9 October 2008 agents for the tenants wrote to the pursuer's agents advising that they accepted that the range in the premises belonged to the pursuer.

4.8 On 13 November 2009 agents for the defender wrote to agents for the pursuer enquiring where the pursuer's equipment should be delivered.

The evidence for the pursuer

[5] The pursuer gave evidence about the history of his dealings with the premises. He explained that after the fire the defender had refused to return his equipment to him and that remained the position until 2009 when agents for the defender confirmed that he now accepted that the range belonged to the pursuer. The defender had re‑let the premises and his new tenant had been using the pursuer's range and oven in his business. In 2009 the defender had offered through his lawyers to return the pizza oven and the frying range to the pursuer. In his evidence in chief, the pursuer did not offer any information as to the cost or subsequent value of the items he installed.

[6] In cross-examination about his valuation of the items he had installed in the premises, he was referred to his own production, no. 6/14 of process, which bore to be a receipt from "SNAPS Catering Equipment and Supplies Ltd" and which bore the typewritten date 12/2/2003. It listed goods and prices totalling £16.496.98 which included a Caponi pizza oven at £2585 including VAT, a fridge at £1856.50 and a freezer at £569.85. No. 6/15 of process bore to be an invoice also bearing the typewritten date of 12/2/2003 from SNAPS for the sale of a Henry Nattal Range for £14,452.50 of which £4452.50 had been paid. No. 6/17 of process was a SNAPS estimate for gas fitting and installation which bears a typewritten date of 20/02/2003 and an appraiser's signature and handwritten date of 20/02/2003.

[7] When it was put to the pursuer that these documents seemed to bear a date one year before he had moved into the premises, he said that perhaps he had been wrong and it had been February 2003 when he had opened up. When he was asked if he could contact SNAPS, the pursuer said that he could not because the business had moved from the Portobello area where it was previously based. However he insisted that the documents were genuine. His pleadings were wrong if they said the shop opened in February 2004. However on being shown further items of correspondence lodged in process, the pursuer accepted that he had opened the shop in February 2004. He accepted that if he had moved into the premises in 2004 then he could not have bought the items in February 2003. When asked if this demonstrated that these were fake documents, the pursuer indicated for the first time that his brother had dealt with this matter and he could not comment. In re-examination he said that someone must have made a mistake with the dates, his brother or the man Stefano who had signed no. 6/17.

[8] Initially the pursuer said that when he had gone to the premises some time after the fire he had seen his fridges and some other items of equipment including a kebab machine and grills, but he later accepted that the fridges which he saw may not have been his. Whilst he insisted that he had recognised the pizza oven and range which were still there as those belonging to him, he did not insist that that was the position with any other items which he saw.

[9] The pursuer accepted that the defender had by November 2009 offered to deliver the range and oven to him. This had happened because the pursuer had obtained statements from Mr Umar and Mr Khalid in which they had confirmed that those items belonged to the pursuer. In March 2010 the defender had offered to deliver those items to wherever the pursuer wanted them to be taken and the pursuer accepted that he had refused. He did not want the items now as they were too old and the current proprietors had been using them to generate sales of £250,000. He would have taken them in 2007, but not now that they have been used. Later in his cross‑examination he said that such items last forever. The pursuer accepted that in April 2009 the defender had offered him £2500 in lieu of delivery which he had not accepted.

The evidence for the defender

Defender

[10] The defender gave evidence confirming that he owned the premises. He confirmed that there had been a fire there on 8 or 9 December 2006. On the day after the fire he had seen the pursuer putting items from the shop into his jeep. The defender's insurance company said that they did not cover the contents, but they cleared away the debris of the fire.

[11] All that was left after the fire that was usable was the pizza oven and frying range. Eventually the defender had obtained an estimate for the value of them and he had instructed his lawyer that the pursuer could take them away or he would pay him £2500 but the pursuer did not take up either option. The defender is still willing to give the pursuer his range and oven. In cross-examination he said that initially he had not been willing to deliver the range and oven to the pursuer because he thought that they belonged to his tenants.

John Sills

[12] Mr Sills has been in business for many years in a company which manufactures fish frying ranges and other catering equipment. He is familiar with other brands. He spoke to no. 7/1 of process, a valuation of the oven and range. The range was worth £1800 on private sale. It had a date of manufacturer marked on it which was either 1994 or 1997. The pizza oven was old and was worth £300. The values would have been much the same in 2007 and would be much the same now. The cost of a new range from his firm would be £15,000 plus VAT and the cost of a new oven from his firm would be £1200 plus VAT.

Submissions for the pursuer

[13] The pursuer reiterated that he could not offer an explanation for the date on the SNAPS invoices and receipts, they had been dealt with by his brother. By the time that the defender had offered to return the fryer and oven to him it was not reasonable for him to take them because he estimated that they had been used to generate business worth hundreds of thousands of pounds.

Submissions for the defender

[14] Mr Sandison's submission was that the court should dismiss the action and sustain the third plea in law for the defender to the extent that it relates to the fridge freezers and utensils and repel both the pleas in law for the pursuer.

[15] The factual supposition underlying the action for delivery was not made out as the defender was not withholding any moveable property as there was no evidence that any such items survived the fire. He had offered the frying range and pizza oven to the pursuer in November 2009 and he had repeated his offer in his evidence. The pursuer had accepted in his evidence that these items had been available to him for over two years. These items were not being withheld and there was no justification for any order being made against the defender. Dismissal rather than absolvitor would be appropriate in case the defender should refuse to allow the pursuer to collect them.

[16] So far as the fridge freezers, utensils and shelving was concerned, the pursuer had accepted that he was not able to say that any of these items existed after the fire.

[17] If the court were to make an order for delivery of the frying range and oven, there was no evidence of the value of the shelving. There was no evidence as to what the utensils were or what they were worth. The only items for which the pursuer offered a valuation was the fridge freezers and there was real doubt about the authenticity of no. 6/14 of process. The pursuer could not explain why the date on the receipt predated his moving into the premises by one year. The court had not been provided with a reliable basis on which it could value the items either in 2007 or at present.

Discussion

[18] On the issues which remain live in the record, there is little dispute on the facts and I accepted the evidence of the defender that the only articles belonging to the pursuer which survived the fire were the pizza oven and frying range, which the pursuer did not ultimately dispute.

[19] The live dispute relates to the value of the destroyed items which the pursuer installed. In his pleadings he has averred that the total value was £34,709.48. This is based on the SNAPS documents.

[20] I have considered the possibility that the year of 2003 was mistakenly typed and written on the documents in 2004, but I do not consider that to be a plausible explanation when regard is had to the whole evidence. Having regard to the oddity of the date on all of the SNAPS documents, the undisputed evidence of Mr Sills, the pursuer's inability to explain why the documents bear to relate to a sale taking place a year before he says it did and his initial attempt to solve that problem by suggesting (erroneously as he later accepted) in his evidence that he started up his business in 2003, I do not accept that the SNAPS documents are genuine. It follows that the only reliable evidence in the case as to the valuation of the range and oven comes from Mr Sills but they are not being withheld. There is no reliable evidence as to the value of any other items either when the business opened in February 2004 or at the time of the fire in December 2006. In these circumstances it is not possible to order payment in the alternative for those items which were destroyed in the fire.

[21] This is an action for delivery and delivery of the surviving items has been offered for a period of over two years now. In so far as directed to achieving delivery of the oven and range, the action ceased to be necessary on 13 November 2009. Since then the defender has not been withholding the oven and range from the pursuer and I cannot grant decree for delivery. Given the position adopted in cross-examination by the pursuer, that he no longer wants the oven and range, absolvitor might well have been the appropriate decree in respect of those items. However, Mr Sandison's submission was that decree should be for dismissal in respect of the conclusion for delivery of the oven and range. Whilst it is unusual to make decree of dismissal after proof, that is what I was invited to do and I am prepared to proceed on that concession.

[22] After November 2009, the action was only necessary in respect of delivery, or alternatively payment in lieu, of the items which were destroyed. The pursuer has not succeeded in that respect and the defender is entitled to absolvitor in that regard.

Expenses

[23] So far as expenses were concerned, the pursuer wanted the court to know that he is not working now, and that he is suffering from a serious illness.

[24] Mr Sandison submitted that when the action was raised in November 2007, it was essentially concerned with seeking declarator that the pursuer was entitled to be the tenant and although the third conclusion sought delivery, it should be regarded as an alternative, the case was really about the lease. In October 2008, the conclusions for declarator were struck out by the pursuer's then advisers. Accordingly, the defenders should be awarded the expenses to 8 October 2008. In the period October 2008 to November 2009 there should be no expenses due to or by either party as the defence was stated in good faith and only on receipt of affidavits, 6/18 and 6/19 of process, did it become apparent that the defender's tenants did not claim to be the owners of the range and oven. From November 2009 onwards, the defender had offered to make the surviving items available and so expenses from November 2009 should be awarded to the defender.

[25] Correspondence lodged and spoken to in evidence established that on 28 April 2009, agents for the defender wrote to agents for the pursuer offering to resolve this action by paying £2500 in return for absolvitor with each party bearing their own expenses. On 13 November 2009 agents for the defender wrote to agents for the pursuer enquiring where the pursuer's equipment should be delivered. On 14 December 2009 agents for the defender wrote to agents for the pursuer offering to deliver the surviving equipment and offered him an opportunity to inspect it with disposal of the case on a no expenses due to or by basis. The same offer for disposal was made again in a letter of 23 March 2010.

Discussion

[26] On the question of expenses, I will endeavour to do justice between the parties on a broad basis. I did not find Mr Sandison's suggestion entirely persuasive. Whilst there were other conclusions which were departed from, that change occurred when it was learned that the defender's tenants had renounced their tenancy. From the outset, one of the conclusions was for delivery. In his original defences to the action, the defender averred that the frying range belonged to his tenants. It was only on 13 November 2009 that he accepted that the pursuer was entitled to delivery of the range and oven. It was only from that point onwards that the action became unnecessary in relation to delivery of the pizza oven and frying range. The pursuer was entitled to seek payment for those items of his which were destroyed in the fire, but he has not succeeded and must bear the expenses of the action after 13 November 2009.

Decision

[27] I shall repel the pleas in law for the pursuer. I shall sustain, in part, the second and third pleas in law for the defender and grant decree of absolvitor in so far as relating to fridge freezers, utensils and shelving and grant decree of dismissal in respect of the conclusion for the pursuer in so far as directed to delivery of the frying range and pizza oven.

[28] I award the expenses of the action up to and including 13 November 2009 to the pursuer and the expenses after 13 November 2009 I award to the defender.