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the demeanour of the witness; and the inherent probability of the witness’s account being true
the demeanour of the witness; and
the inherent probability of the witness’s account being true.
I have been assisted by the documents to which I have been referred and I am grateful to the solicitors for producing the helpful trial bundle.
I shall need to make findings of fact. In doing so, I remind myself that I must only find a fact proven if I am satisfied on the evidence that I have heard and read that it is more likely than not to be true. In other terms, each such fact must be established on the balance of probabilities. The burden of proof rests with the party asserting the allegation.
- Heading
- The Parties
- The Background Facts
- The Master Agreement
- By Clause 2.5, the Defendants agreed to grant Mr Lomax an option to purchase plot F ( Option F )
- Option Agreement C
- the “Option Period” is defined as “five years from [19 January 2017]”
- by Clause 8.2, “the Deposit must be paid by direct credit”
- the Deposit is defined as “10% of the Purchase Price (exclusive of VAT)”
- Option Agreement F
- by Clause 1.1 (definitions)
- Subsequent events in relation to Plots C and F
- informed the Defendants that he had been unaware that a main water pipeline ( the Severn Trent Pipeline ) ran directly across the land which the Claimants had acquired and proposed to buy and suggeste
- proposed a Purchase Price of £250,000 for the remainder of Plot C proposed that the Defendants agreed to remove the restrictive covenant on Plot F prohibiting the construction of additional buildings on that land, other than the redevelopment of the
- “What was the total amount on the table H” “£250K for the land [Plot C] £325K for the house [Plot F]…The deal is take it or leave it…”
- The date of the Defendants’ move to the New Farmhouse
- a holiday request form, indicating that she was to be away from work on 28 and 29 June 2018 a removal van invoice/receipt dated 28 June 2018 referring to a “part move, total cost £80. Paid cash”
- a Certificate of Practical Completion dated 25 June 2018
- The issues to be determined in relation to Plot C
- whether Orchard House was ready and able to tender any deposit on 6 January 2021
- what loss, if any, has been suffered by Orchard House by reason of any breach by the Defendants The Parties’ broad positions on Plot C
- Issues to be determined in relation to Plot F
- the date on which the Defendants moved into their new property
- whether the Defendants are in breach of Option Agreement F by failing to transfer Plot F to Mr Lomax
- The Parties’ broad positions on Plot F
- Procedure
- The Part 8 Claim
- he valued the incorrect size of the development authorised by the Planning Permission
- he failed to allow for other build costs; and
- Mr Wilson’s calculation of Gross Development Value and build costs is, therefore, overstated
- Approach to the witnesses’ evidence
- the demeanour of the witness; and the inherent probability of the witness’s account being true
- The witnesses
- The minutes of the meetings taken by Mrs Davies
- Discussion and Analysis
- The key factual issues to be determined
- Was there a certain and binding oral agreement between Orchard House and the Defendants reached between September 2018 and March 2019 as to the Purchase Price for Plot C (less Plot G)?
- Was there a further binding oral agreement (or a certain binding variation to any prior agreement) reached between Orchard House and the Defendants in or around July 2020 as to the Purchase price for
- What was the date on which the Defendants moved into the New Farmhouse?
- Plot C – Issues for determination
- Issue 2: Was there a further certain and binding oral agreement (or a certain and binding variation to any prior agreement) between Orchard House and the Defendants in or around July 2020 as to the Pu
- Issue 3: Whether waiver by estoppel arose up to July 2020 upon which reliance was placed by Orchard House, so that the Defendants are estopped from denying that a Purchase Price of £250,000 was agreed
- Issue 4: Whether the purported exercise of the Option C on 6 January 2021 was required to be conditional upon the payment of a deposit; and, if it was so, whether the Defendants waived compliance with
- The Law
- commercial common sense; but disregarding subjective evidence of any party’s intentions
- Issue 5: Whether Orchard House was ready and able to tender any deposit on 6 January 2021
- Issue 6: Whether the Defendants validly terminated Option C on 21 October 2021 for the reasons set out in their solicitors’ letter of the same date
- Issue 7: Whether the second purported exercise of the option for Plot C on 17 January 2022 was valid
- Issue 8: Whether the Defendants are in breach of Option C by failing to transfer Plot C to Orchard House
- Issue 9: what loss, if any, has been suffered by Orchard House by reason of any breach by the Defendants
- The Part 8 Claim
- Option F – Issues for determination
- The parties’ respective positions
- Analysis and decision
- Issue 2: the date on which the Defendants moved into the New Farmhouse
- Conclusions