Case No. HC-07-C00442

This is a claim for rectification and specific performance of a contract for the sale by the defendants to the claimant for £120,000 of a freehold property situate at and known as 70 Ommaney Road, London SE14. Damages and interest are also claimed. The defendants contend that they have lawfully rescinded the contract and forfeited the £12,000 deposit and therefore that the claimant is not entitled to the relief which he claims.

Because at the date of the contract the property was divided into flats held by qualifying tenants within the meaning of Part 1 of the Landlord and Tenant Act 1987, under which the tenants in question enjoy a right of first refusal in the event of a sale of the kind involved in this case, it was necessary for the defendants to serve offer notices on the affected tenants pursuant to section 5 of that Act. As they were required to do under section 5(5) of the Act, the defendants served notices on two of the three tenants and specified 1^st February 2007 as the date by which the offer of disposal had to be accepted. Under section 5A(4) of the Act, a section 5 notice has to specify a period of not less than two months which is to begin with the date of service of the notice. The notices served on the two tenants in this case were dated 24^th November 2006 and were served, I understand, on that date. This meant that the notices were seven or so days longer than they needed to be. In the event, neither of the tenants exercised his or her right to acquire the defendants’ interest in the property.

The contract was dated 12^th December 2006, which is when, in accordance with the Law Society Formula B, contracts were exchanged. As I have mentioned, the stated purchase price was £120,000. A deposit of £12,000 was duly paid on exchange. The contract was expressed to be subject to the special conditions endorsed on it and, by Special Condition 4, to the Standard Conditions of Sale, 4^th edition, in so far as appropriate to a sale by private treaty and not inconsistent with or varied by the express provisions of the contract.

The following special conditions are material to this dispute. Special Condition 10:

Both parties to the sale had lawyers or conveyancers acting for them. The claimant had a firm of solicitors called Gelbergs, with the matter being handled by one of the firm’s partners, a Mr. Graham Taylor. The defendants acted by licensed conveyancers called Cain Associates, initially through an associate called Nicola Walsh and subsequently by a partner, Joseph Mann.

By 18^th January 2007, it seemed very likely that the tenants would not be exercising their right to acquire the defendants’ interest in the property and therefore that the contract would be proceeding to completion. But at this point a difference of opinion surfaced between the parties’ advisers over the identity of the contractual completion date. Initially the defendants’ advisers took the view, mistakenly, that the contractual completion date was 24^th January 2007, the date appearing at the end of Special Condition 25. In that belief, and on the basis that the completion monies had not been tendered on that day, Cain Associates served notice to complete under Standard Condition 6.8.1 in purported exercise of their clients’ right to do so under the contract.

Gelbergs, who had been supplied a few days earlier with copies of the section 5 notices which had been served, immediately responded by pointing out that this involved a misreading of Special Condition 25. They did so in a letter to Cain Associates, dated 25^th January, in which, omitting irrelevant immaterial parts, they stated:

Accepting that their notice to complete was indeed premature, Cain Associates wrote to Gelbergs on 31^st January to confirm that the notice to complete was withdrawn. However, contrary to the contentions in Gelbergs’ letter, Cain Associates maintained that the contractual completion date would be 10 days after 24^th January, i.e., on 3^rd February 2007. Gelbergs again countered that this was wrong, that the 10 days fell to be calculated by reference to the date when by their terms the section 5 notices expired, namely 1^st February, and that as the 10^th day so calculated fell on a Sunday, contractual completion would fall on Monday, 12^th February 2007.

Sticking to their view of the contract, Cain Associates on 5^th February served a fresh notice to complete. Once again, Gelbergs challenged the validity of the notice. They again pointed out that the contractual completion date was intended to be 10 days after the date on which the tenants’ rights under the 1987 Act expired and that in accordance with the notices served on the tenants, specifying 1^st February as the latest date for acceptance, the 10–day period would not start to run until after 1^st February.

No doubt accepting that Gelbergs’ view of Special Condition 25 might be right, Cain Associates served a further notice to complete – the third in this dispute – on Monday, 12^th February. It was expressed to be without prejudice to any previous notice served. It was served not least because Gelbergs’ client, the claimant, had still failed to tender the completion monies.

Nothing material then seems to have occurred until 2.44 p.m. on 26^th February when Cain Associates received by telegraphic transfer from Gelbergs the sum of £113,070.34. It arrived unaccompanied by any letter, although Mr. Taylor says in his evidence, and since there has been no cross–examination of the witnesses I accept, that he put in several calls to Mr. Mann of Cain Associates and left at least four messages on his answering phone to state that the money was on its way, but that none of his calls were answered.

Cain Associates faxed a letter to Gelbergs at a little after 5.00 p.m. that day to say that the receipt of the £113,070.34 at 2.45 p.m. that day was “out of time” and therefore that they intended to return the money the following day.

It has not been suggested that that letter did not amount to a notice of purported precision of the contract by the defendants. Any doubt about the matter is removed by Cain Associates’ action two days later on 28^th February in returning the £113,070–odd to Gelbergs. These proceedings were launched the same day.

The following questions arise for determination on the amended pleadings. First, if in the events that happened and on a proper construction of the contract the completion date for the sale was 10 days after 24^th January, i.e. 3^rd February 2007, should the contract be rectified to specify that the completion date was to be on the 10^th day after 1^st February; that is to say, on 12^th February being the next available working day? Second, if, as a result of rectification of the contract or on its true construction, 12^th February was indeed the contractual completion date with the result that the notice to complete served that day was effective to require completion by 26^th February, did the claimant in making payment at 2.44 p.m. that day tender his monies too late? It is not suggested that he attempted to effect any earlier tender. Third, and in any event, did the claimant remit inadequate monies?

What then was the contractual completion date? And if it was 10 days after 24^th January, does the claimant establish his claim to rectification? The outcome of these issues turns on whether the 10 days referred to in Special Condition 25 runs from after 24^th January or from after the date when the tenant’s rights to proceed under the 1987 Act expired.

In my view it is obvious that the date specified in Special Condition 25, that is to say 24^th January 2007, erroneously assumes that the notices served on the tenants under section 5 would expire on or by that date. That is apparent from a letter which Gelbergs wrote to Cain Associates on 29^th November 2006, responding to an earlier letter and a subsequent telephone conversation. In that letter Mr. Taylor of Gelbergs said this:

In his second witness statement, Mr. Taylor said, and I accept, that not having seen the notices at that time, or indeed until several weeks after contracts were exchanged, and having been informed that the notices were being served on 24^th November, he assumed that 23^rd January would be when they would expire and that he specified the 24^th January accordingly. In fact, as he was later to discover, the notices had expired on 1^st February. In that statement Mr. Taylor says this:

Ms. Walsh, who works for Cain Associates, has not provided a witness statement to contradict what Mr. Taylor has stated and, as I have already mentioned, neither side has sought to cross–examine the other side’s witness. (I should say that the defendants’ only witness is Mr. Mann of Cain Associates and the claimant’s only witness is Mr. Taylor.)

From Mr. Taylor’s evidence and his letter of 29^th November, it is apparent, and I find, that both sides, Mr. Taylor for the claimant and Ms. Walsh for the defendants, assumed that the expiry date of the section 5 notices was two months after those notices had been served and that 24^th January was inserted in the belief, erroneous as it turned out, and with the intention that that date represented the expiry date. That that belief and intention were shared by both sides is apparent, not just from Mr. Taylor’s evidence, but also from his letter to Cain Associates and, indeed, from the terms of the Special Condition itself. It cannot credibly be suggested, and I reject the submission of Mr. Weekes for the defendants to this effect, that the date of 24^th January was inserted into the contract in order to provide certainty whatever the true date of expiry of the notices.

I am very far from certain that I cannot as a matter of construction substitute 1 February for the erroneous 24 January, but Mr. Kremen for the claimant does not invite me approach the matter in that way. Instead he submitted that the necessary requirements of rectification for common mistake are established; that is to say: first, the requisite common intention (the date to be inserted) should coincide with the expiry of the notices; second, the continuance of that common intention at the time the contract was entered into on 12^th December 2006; and, third, the failure of the contract accurately to reflect that intention. He therefore submitted that the contract should be rectified to specify 1^st February 2007 in place of 24^th January 2007.

I agree that the necessary elements for rectification are established and that the contract should be rectified as Mr. Kremen suggests. Mr. Weekes submitted that the parties intended to insert the 24^th January and the fact that they did so on the basis of the shared misunderstanding of the date of expiry of the section 5 notices does not entitle the claimant to rectify the contract. He referred to me to the well–known judgment of Denning LJ in Rose (Frederick E.) (London) Ltd v William Pim jnr. & Co. Ltd [1953] 2 QB 450, especially at pages 461 to 462.

The difference between that case and this is that here the parties’ intention was, as I have stated, clear, that there was a more than sufficient outward expression of that intention in the communications by Mr. Taylor to Miss Walsh to which I have referred, and I may add in Special Condition 25 itself, and that it is quite evident that the insertion of 24^th January failed to give effect to this intention. Given those ingredients, the fact that the parties intended to insert and did insert 24^th January into the contract does not answer the case. I shall accordingly proceed on the basis that the claimant establishes his right to rectification of Special Condition 25 and that I should therefore consider the parties’ rights as if that condition had stated 1^st February and not 24^th January.

That brings me to the second issue, which is whether by transferring the £113,070–odd to Cain Associates at 2.44 p.m. on 26^th February, the claimant failed to comply, because 2.44 p.m. was too late, with the notice to complete served by Cain Associates on 12^th February. It is common ground that with the substitution in Special Condition 25 of 1 February for 24 January, the contractual completion date fell on Monday, 12^th February 2007. It is also common ground that the notice to complete served on 12^th February was effective to require the parties to complete the contract within 10 working days of the giving of the notice, excluding the day of service, that time was thereby made of the essence of the contract and that the notice expired on 26^th February.

Mr. Weekes submitted that Special Condition 10 requiring completion to take place by 1.00 p.m. on the day fixed for completion determines the matter, in that as a result of the notice to complete, 26^th February was the latest date for completion and as the monies were not made available until after 1.00 p.m., the claimant was out of time to complete in accordance with the notice. He submitted that this is confirmed by the second half of the condition, stating that “if completion shall take place after that time, the buyer should be treated as having completed on the next following working day”. This confirms, he said, that any attempt at completion after 1.00 p.m. is to be regarded as occurring the following working day.

Mr. Kremen submitted that this is to misunderstand the purpose of that condition. Its function he said is the same as Standard Condition 6.1.2, namely, if payment is made but after 1.00 p.m., it requires the payment of the day’s additional interest if the next working day is the following day and an adjustment of the apportionments on the same footing, but it does not, he said, set a deadline of 1.00 p.m. as the latest time by which completion that day can be contractually insisted upon. He submitted that the second part of the Special Condition predicates completion actually taking place on the same day, but after 1.00 p.m. This is inconsistent he said with the proposition that completion, if it is to take place at all that day, must take place by 1.00 p.m.

Mr. Weekes responded by submitting that the function and effect of Standard Condition 6.1.2 may be as Mr. Kremen submitted, but there was a vital distinction between Special Condition 10 and Standard Condition 6.1.2, in that the latter states:

I accept that Standard Condition 6.1.2 has the limited function for which Mr. Kremen contended. This finds support in paragraph 8.013 of Emmet on Title, 19^th edition. The question therefore is whether as a result of the absence of any reference to the delayed completion being for the purpose of apportionments and compensation only or something to like effect, Special Condition 10 has the wider effect for which Mr. Weekes contended and means that if the monies have not been tendered by 1.00 p.m. on the day on which the notice to complete expires, the claimant has failed to comply with the notice and it is then open to the defendants to rescind the contract under Standard Condition 7.5. In my judgment, Mr. Kremen is right on this point and that even though there is no limitation in Special Condition 10 equivalent to what is found in Standard Condition 6.1.2, the effect is the same. Without going into the question how late in the day on the last day for completion fixed by notice to complete it is open to a purchaser to tender the necessary completion monies, I am of the view that unless prevented by the terms of the contract from doing so after a stated time, it was open to the claimant under this contract to tender the monies at 2.44 p.m. in fulfilment of his obligation to complete within the time stipulated by Standard Condition 6.8.2. I agree with Mr. Kremen that Special Condition 10 assumes that completion may lawfully occur after 1.00 p.m. Its effect, in my judgment, is that if completion is after 1.00 p.m., the sum to be paid must be calculated as if completion had taken place before 1.00 p.m. on the next working day.

This conclusion renders it unnecessary to consider Mr. Kremen’s other point, which was that Special Condition 10 does not apply once notice to complete has been served. It is sufficient if I say, in agreement with Mr. Weekes, that I do not consider that its operation is confined to completion on the contractual completion date. I see no reason why it should not apply to completion on any day when as a matter of contractual right it is open to the parties to complete.

I should mention that I derive no assistance from the Court of Appeal decision in Carne v Debono [1983] 3 All ER 405, to which I was referred. The issue in that case was whether a vendor’s solicitor was obliged to provide a purchaser with a completion statement. The issue with which I am concerned does not appear to have arisen in that case. The fact that the contract in that case stipulated that the balance of the purchase monies had to be received by the vendor’s solicitors not later than 12 noon on the date of completion is not the same as Special Condition in this case. Nor is it evident what other provisions there were in the contract in that case which might throw light on the proper understanding of the term requiring payment by noon on the completion date. I also observe that the purchaser in that case appeared in person and that the court was at pains to emphasise its concern to limit its decision to matters essential to the determination of the appeal.

That brings me to the final issue, which is whether, even if it was open to the claimant to complete his purchase when the monies were paid over at 2.44 p.m., the sum tendered was too little. This turns on the effect of Special Condition 26 of the contract, which provided that the purchaser will be responsible for the vendor’s legal costs of the sale fixed by the condition in the sum, inclusive of VAT, of £599.50. It is common ground that the sum paid over at 2.44 p.m. did not include this amount. Nor was it tendered at any other time on 26^th February.

In his reply submissions, Mr. Kremen submitted that although the liability to pay the sum specified by Special Condition 26 crystallised on the contractual completion date and accordingly the sum became payable on completion, it does not follow that failure to pay the sum by the expiry of the period specified by the completion notice entitled the defendants to rescind the contract. He submitted that there was a difference in this respect between Special Condition 24 and the requirement under Standard Condition 6.4 that the purchase price for the property be paid on completion.

Special Condition 24 states explicitly that the additional sum of £4,497.91, which it then explains, is to be paid “upon completion”. Since, as Mr. Kremen conceded, that is exactly how Special Condition 26 is to be understood, even though that condition does not contain the word “upon completion”, I fail to see why, as Mr. Kremen accepted, failure by the expiry of the notice to complete to pay the £4,497.91, specified by Special Condition 24, entitles the vendors to rescind, whereas failure to pay the £599.50 specified by Special Condition 26 does not. The fact, as Mr. Kremen pointed out, that Special Condition 14 entitles the vendor’s conveyancers to “retain possession of the title deeds as long as any monies due under this agreement remain unpaid”, thereby predicating that there might be sums due under the contract that were payable other than on completion, and that Special Condition 12 stipulates what compensation the vendor may be entitled to over and above what is provided by Standard Condition 7.3 if the buyer through no fault of the vendor fails to complete by the due date in time, does not seem to me to assist the claimant on this issue.

In my judgment therefore, the claimant’s failure to include the £599.50 in the amount transferred to Cain Associates in the afternoon of 26^th February entitled the defendants to rescind the contract as it is accepted by the claimant that they purported to do later that day. It was a part of the sum that the claimant was obliged to pay on completion. He failed to do so by the deadline imposed as a result of the service of the notice to complete.

In the result, the defendants establish their entitlement to rescind the contract and accordingly the claimant’s claim for specific performance and damages fails. This may appear a hard result, given the comparatively small shortfall in payment, but by leaving payment until so late after service of the third notice to complete, the claimant was leaving himself with no room for error. Time had been made of the essence of the contract. The claimant was up against a final deadline.