Islay View Management Company Ltd v McCloy & Anor

Mr G Watt (instructed by Thompson Crooks Solicitors) for the Plaintiff Mr M McEwen (instructed by Rosemary Gawn Solicitors) for the Defendants

[1]               The defendants, by way of summons, seek a trial pursuant to Order 33 rule 3 of the Rules of the Court of Judicature of three preliminary issues:

(i)      Whether the plaintiff can maintain these proceedings when they have failed to serve a notice pursuant to section 14 of the Conveyancing and Law of Property Act 1881 ("the 1881 Act") prior to the commencement of the proceedings.

(ii)   Whether the plaintiff can maintain these proceedings when they have demanded and accepted payment of service charges which are treated as additional rent under the terms of the Lease dated 10 October 2014 and have thereby treated the Lease as subsisting between the parties after a date when they knew of the breach of covenants;

(iii)            Whether the plaintiff has waived any right to claim forfeiture by reason of claiming an injunction to restrain the defendants from admitting persons into the premises in breach of covenants contained in the Lease.