[2024] EWHC 3625 (TCC)

what loss, if any, has been suffered by Orchard House by reason of any breach by the Defendants.

Orchard House maintains that the Defendants are in breach of Option Agreement C by failing to transfer Plot C to it and that it has suffered loss as a consequence of that breach.

It maintains that it reached a binding oral agreement with the Defendants between September 2018 and March 2019 that the Purchase Price for Plot C (less Plot G) was to be £250,000.

Moreover, it contends that a further binding oral agreement (or a variation of the original agreement) was reached by the parties in or around July 2020 as to the Purchase Price for Plot C in that they agreed a global Purchase Price of £601,000 for Plots C and F taken together.

Orchard House argues that the alleged agreement satisfies the requirements of Clause 17.1 of Option Agreement C or that a waiver by estoppel arose on which it relied, preventing the Defendants from denying that a Purchase Price of £251,000 was agreed.

It also contends that it is not estopped from reverting to the oral agreements which it reached with the Defendants, in the event that the expert determination is binding on the parties.

Orchard House does not accept that, in order to be valid, the first exercise of Option C on 6 January 2021 was conditional on the payment of a deposit, and it contends that it was ready and able to pay the deposit on that date. Alternatively, it maintains that the requirement to pay the deposit was waived by the Defendants’ failure to attribute an exact value to Plot C.

Orchard House argues that Mr Wilson’s expert determination is not binding on the parties as it was infected by manifest error. Accordingly, the Defendants were not justified in terminating Option C on 21 October 2021.

Orchard House also contends that, without prejudice to its arguments concerning the first purported exercise of Option C, the second purported exercise of the option on 17 January 2022 was valid.

The Defendants deny that they are in breach of Option Agreement C and they say that no loss has been pleaded by Orchard House.

They do not accept that any agreement was ever reached as to the Purchase Price of Plot C.

In any event, they contend that the withdrawal of the draft contracts and the concurrent exercise of Option C with a view to there being an expert determination of the market value of Plot C renders any allegation of prior agreement nugatory. Accordingly, their position is that Orchard House is now estopped from seeking to rely on the antecedent negotiations as to the Purchase Price.

Moreover, they contend that the exercise of Option C without an accompanying deposit rendered it invalid with no contract coming into being as a consequence.

The Defendants say that it is for Orchard House to show that they were ready, willing and able to pay the deposit as at 6 or 27 January 2021.

They maintain that their solicitors were entitled to terminate the Option because completion had not taken place by 7 July 2021.

The Defendants argue that the second purported exercise of Option C was invalid, because the expert had determined the Purchase Price, Orchard House had failed to complete in accordance with that valuation, they had terminated Option Agreement C and Orchard House was estopped from relying on any antecedent negotiations or an alleged agreement on price by reason of its election to invoke the expert determination procedure.