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Cullen v Barnard Lodge Management Ltd [2013]UKUT 0493 (LC): Service Charge Demands Issues; Appellants Cannot Appeal

Summary: It was not open to the appellants to appeal on the grounds that the LVT failed to deal with a contention which was not a live issue before the LVT, nor was it open to the appellants to raise an argument on a point which had been conceded before the LVT

Facts: Two service charge demands, one dated 1 May 2010 and the other dated 15 October 2010, were in issue before the LVT. The hearing before the LVT lasted two days but was adjourned part-heard for several months. At the first hearing in March 2011 the appellants were represented by counsel but, for financial reasons, the appellants represented themselves at the adjourned hearing in September 2011. The appellants’ Statement of Case to the LVT stated “the first notification received by the applicants from the respondent in accordance with these provisions [ section 47 and 48 of the 1987 Act] was the attached application for payment dated 15 October 2010.

The Upper Tribunal granted permission to appeal on the ground that “There is a realistic prospect of success … that the LVT failed to deal with the applicant’s contention that the service charges were not due by reason of failures on the part of the landlord to comply with the provisions of section 47 and 48 of the Landlord and Tenant Act 1987. Permission to appeal limited [to] this issue.”

At the hearing of the appeal the appellants accepted that the validity of the May and October 2010 notices, namely their alleged failure to comply with section 47 and 48 of the 1987 Act was not argued before the LVT by counsel or by themselves.

Decision Appeal: The UT (HHJ Gerald) that the validity was not argued before the LVT because it was not an issue. The appellants had accepted that the second notice was valid. It followed that any defect in the first notice was cured in the sense that it complied with section 47 and 48 of the 1987 Act. The LVT could not be criticised for failing to adjudicate upon an issue they were not asked to adjudicate upon. It was not open to the appellants to appeal against the decision on the grounds that the LVT failed to deal with a contention which in actual fact was not a live issue before the LVT from which it followed that the LVT did not need to make a decision about that matter at all. Furthermore it was not open to the appellants to raise an argument on a point which had been conceded before the LVT.

 

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