England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL DISTRICT REGISTRY
CHANCERY DIVISION
(HIS HONOUR JUDGE HODGE QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th November 2009

Lord Justice Etherton:

Introduction

1. This is an appeal from an order made on 6 April 2009 by HHJ Hodge QC, sitting as a judge of the Chancery Division, by which he made a declaration as to the proper interpretation of an agreement dated 25 November 2005 between the respondent, Pierse Developments Limited ("Pierse"), and the appellant, Liberty Property Investment Limited ("Liberty").The appeal has been brought with the permission of the Judge.
2. Pierse is a builder and property developer. Liberty is a property intermediary, whose business includes the bulk purchase of apartments for onward sub-sale to third parties ("Third Party Purchasers"). The issue between the parties, expressed in the most general and simple terms, is whether, if Liberty has introduced a Third Party Purchaser of an apartment, Liberty itself always remains liable to complete the purchase of the apartment in the event of default by that Purchaser. Pierse contends, and the Judge held, that Liberty does remain so liable.

The Agreement

3. The written agreement between the parties dated 25 November 2005 ("the Agreement") defines Pierse and Liberty as "the Developer" and "the Buyer" respectively. It provides for Pierse to construct a building known as The Overhead, Sefton Street, Liverpool, containing 55 apartments, and for the sale of the apartments on 999 year leases to Liberty. The lease of each apartment was to be in the form annexed to the Agreement ("the Lease"). The purchase price for each apartment, defined as "the Premium", was calculated by multiplying the net internal area of each apartment by £256 per square foot. The Agreement defined the "Completion Date" as being the date provided for in clause 5(A) of the Agreement. Clause 5(A) was in the following terms:

"5(A) PRACTICAL COMPLETION

The Developer or the Developer's Solicitors shall on practical completion notify the Buyer or the Buyer's Solicitors of the issue of the certificate of practical completion in respect of the Building (the "Developer's Notice") and the Lease shall be completed on the later of:

(i) the date which is twenty (20) working days after receipt by the Buyer or the Buyer's Solicitors of the Developer's Notice; and

(ii) the date which is five (5) working days after the Net Internal Area of the Apartment is agreed or determined in accordance with clause 3 (Measurement of Apartments)"

4. Clause 7 of the Agreement provided for a deposit of £938,265.60 to be paid to Pierse's solicitors as agents.
5. Clause 8 of the Agreement provided for completion as follows:

"8. COMPLETION

(a) On the Completion Date the Buyer shall pay the following to the Developer or the Developer's Solicitors (as directed):

(i) the Premium (less the proportion of the Deposit referable to the relevant Apartment);

(ii) apportioned sums (whether actual or estimated) of the Principal Rent, Service Charge and Insurance Rent in respect of the period from the Completion Date to the next date due under the Lease; and

(iii) the sum of £100 plus VAT and disbursements towards the costs of preparation of the Lease and engrossment thereof.

(b) Subject to receipt of the Completion Monies, the Developer shall on the Completion Date grant and the Buyer shall accept a Lease of the Apartment together with and except and reserving the rights and subject to the rights reservations covenants and other provisions contained in the Lease."

6. Clause 15 of the Agreement, which is at the heart of the dispute between the parties, provided for Liberty to introduce a Third Party Purchaser of an apartment in place of Liberty itself. Clause 15 is as follows:

"15. THIRD PARTY PURCHASERS

(a) The Buyer shall be entitled to nominate a new purchaser (the "Third Party Purchaser") of all or any of the Apartments on giving notice in writing (a "Third Party Sale Notice") to the Developer and the Developer's Solicitors of such nomination and which notice shall specify:

(i) the Apartment or Apartments to which the Third Party Sale Notice relates (the "Third Party Apartment");

(ii) the sale price (which may be greater or less than the Premium payable for the relevant Apartment under this Agreement) (the "Third Party Sale Price");

(iii) the details of the amount of the deposit to be paid by the Third Party Purchaser (the "Third Party Deposit"); and

(iv) the full name and address of the Third Party Purchaser with details of their legal representatives such that a contract can be issued to that representative either by post, fax, email or in the document exchange.

(b) A Third Party Sale Notice may only be issued in respect of a bona fide Third Party Purchaser and upon the condition that the minimum deposit required shall be 10% of the Third Party Sale Price which shall be payable to the Developer's Solicitors as agent.

(c) Upon receipt of a Third Party Sale Notice the Developer's Solicitors shall as soon as reasonably practicable issue to the legal representative of the Third Party Purchaser a contract (in form and substance satisfactory to the Developer) together with an estate information sheet (which shall be in substitution for, and preclude, all and any pre-contract enquiries and requisitions on title which may have been raised by the Buyer and/or any Third Party Purchaser) in respect of the grant of the Lease of the relevant Apartment.

(d) The issue of a Third Party Sale Notice by the Buyer shall irrevocably and unconditionally be deemed to authorise the Developer to exchange contracts with the Third Party Purchaser and (subject always to clause 15(h)(ii)) to grant the Lease of the Third Party Apartment to the Third Party Purchaser in consideration of the Third Party Sale Price.

(e) If the Third party Sale Price is greater than the Premium payable in respect of the relevant Apartment under this Agreement then upon exchange of contracts for the Third Party Apartment the Developer's Solicitors shall retain as agent an amount equal to the Deposit which is referable to, and was paid by the Buyer in respect of, the relevant Apartment and then pay as soon as reasonably practicable to the Buyer (or as it directs) the balance of the Third Party Deposit.

(f) If the Third Party Sale Price is less than the Premium payable in respect of the relevant Apartment under this Agreement then upon exchange of contracts for the Third Party Apartment the Developer's Solicitors shall retain the Third Party Deposit as agent and the provisions of clause 15(h)(ii)) shall apply.

(g) On the Completion Date the Buyer shall be released from the obligation to complete the acquisition of the relevant Apartment but this shall not relieve the Buyer from its obligations under clause 15(h)(ii) nor shall it affect or release the Buyer in respect of any other Apartment not the subject of a Third Party Sale Notice.

(h) Subject to the Third Party Purchaser completing a Lease in respect of the Third Party Apartment the following shall apply:

(i) if the Third Party Sale Price is greater than the Premium payable in respect of the relevant Apartment then the Developer shall pay to the Buyer an amount equal to the difference between the Premium and the Third Party Sale Price (less that element of the Third Party Deposit already paid by the Developer to the Buyer under the terms of clause 15(e));

(ii) if the Third Party Sale Price is less than the Premium payable under this Agreement in respect of the relevant Apartment then the Buyer shall on (and as a condition of) completion of the Lease pay by telegraphic transfer to the Developer on the Completion Date the difference between the Premium and the Third Party Sale Price (less the Third Party Deposit paid by the Third Party Purchaser);

(iii) the Developer and the Buyer shall each be released from their respective obligations hereunder in respect of the Third Party Apartment (but otherwise the terms and conditions of this Agreement shall remain in full force and effect in respect of the other Apartments not the subject of a Third Party Sale Notice)."

The proceedings.

7. During the course of the development Liberty found Third Party Purchasers for 49 of the apartments, and Pierse entered into Third Party Purchase agreements ("TPP Agreements") directly with them for the grant of Leases to them. The TPP Agreements were all in the same basic form and, like the Agreement, incorporated the Standard Conditions of Sale (4^th ed). An example is exhibited to the first witness statement of Lawrence McDonald, Pierse's solicitor. In the events which happened, the Completion Date under the Agreement and the date for completion for each of the TPP Agreements was 7 May 2008. More than 30 Third Party Purchasers have been unwilling or unable to complete.
8. By its Part 8 Claim Form issued on 21 July 2008 Pierse claimed a declaration that, on the true construction of clause 15 of the Agreement, (a) Liberty is not released from its obligation to accept a Lease of a Third Party apartment on the Completion Date unless the Third Party Purchaser completes the Lease; and (b) if the Third Party Purchaser fails to complete a Lease, Liberty is bound to accept the Lease. The Judge accepted Pierse's case, and made that declaration.
9. In his judgment the Judge said that he accepted the submissions of Mr Nicholas Riddle, counsel, on behalf of Pierse. These were in summary as follows. Clause 15 must be construed in the context of the Agreement read as a whole. Pierse had the benefit of a buyer, namely Liberty, for the entire development. It would be commercially unlikely that Pierse would have wished to release Liberty unless and until Pierse had the protection of the completion of a sale to a Third Party Purchaser. On the proper interpretation of the Agreement, the parties gave effect to that commercial reality. If the parties had intended that the existence of a Third Party Purchaser should be sufficient to release Liberty, whether or not the Third Party Purchaser actually completed, they would have provided for the release to take effect on exchange of the TPP Agreement rather than on the Completion Date. They did not do so, and so they contemplated the simultaneous subsistence of two inconsistent contracts in relation to the same apartment. Against that commercial background, clauses 15(g) and 15(h) are properly to be read together, the latter qualifying and defining the operation of the release under clause 15(g). Read in that way, the opening words of clause 15(h) and the provisions of clause 15(h)(iii) make it clear that the clause 15(g) release is conditional on actual completion of the grant of the Lease to the Third Party Purchaser. Indeed, unless clause 15(h) is interpreted in that way clause 15(h)(iii) is redundant. Apart from the obligations imposed on Liberty to pay the purchase price and complete the Lease in accordance with clause 8, the only obligations imposed on Liberty by the Agreement were to cooperate in the measuring of the apartments (under clause 3(a)) and to pay the deposit (under clause 7). Both of those obligations would have been discharged long before the Completion Date. Clause 15(h)(iii), insofar as it applied to Liberty, can therefore only have been intended to apply to its obligations under clause 8. If that is correct, there cannot have been an unconditional release under clause 15(g).
10. The Judge expressed his concern that, on that interpretation of the Agreement, there was an anomaly in that clause 15(e) provided that Pierse receives the deposit under the TPP Agreement, save to the extent that it exceeded the amount of the deposit received under the Agreement which is referable to the relevant apartment. Save to that limited extent, there is no express mechanism in the Agreement for credit to be given to Liberty for the deposit paid to Pierse under the TPP Agreement if a Third Party Purchaser fails to complete and Pierse requires Liberty to do so. Notwithstanding his concern on that point, the Judge, as I have said, considered that the submissions advanced on behalf of Pierse were correct. He stated his conclusions as follows:

"30. I confess that I am troubled by that consideration [i.e. the point about the deposit], which does seem to me to point against the construction which Mr Riddle urges upon me. Nevertheless, it does not seem to me that that consideration outweighs the force of Mr Riddle's other submissions. It does seem to me that Mr Riddle is right; and, for the reasons that he gives, that I have to construe the principal agreement, and in particular clause 15 of the principal agreement, as a consistent, logical and coherent whole. Adopting that approach, it does seem to me, for the reasons that Mr Riddle has given, and which I have set out earlier in this judgment, that the release of the defendant as buyer under the principal agreement takes effect, not on the contractual completion date, but only upon the completion of the lease of the relevant apartment by the appropriate third party purchaser. It seems to me to be clear that that follows from the terms of clause 15(h)(iii), which seems to me clearly to qualify, and to explain, what is meant by the phrase "the Completion Date" in clause 15(g).

31. I acknowledge that the expression "the Complete Date", by its capitalisation, is a defined term. I acknowledge also that, elsewhere in the agreement, notably in clause 20, the draftsman has adopted the phrase "actual completion"; but, nevertheless, it seems to me quite clear from reading 15(g) in conjunction with, and subject to, the opening words of clause 15(h), that the buyer is only released from the obligation to complete the acquisition of the relevant apartment upon the third party purchaser completing a lease in respect of that apartment.

32. I therefore accept Mr Riddle's submission, and the claimant's proposed construction, and I will grant the declarations sought by the claimant in the Part 8 claim form."

Discussion.

11. Mr Nicholas Dowding QC has appeared for Pierse on this appeal, and has supported the Judge's decision by emphasising the following points. He submits, first, that the express "release" under clause 15(h)(iii) of the Agreement can only be referring to obligations which, but for clause 15(h)(iii), would continue to subsist under the Agreement notwithstanding completion of the grant of the Lease to a Third Party Purchaser and the making of the balancing payments under clauses 15(h)(i) and (ii). He submits that is underscored by the word "hereunder" in clause 15(h)(iii), which naturally and properly is referring to the Agreement as a whole and not just clause 15. Those outstanding obligations, he says, can only sensibly be referring to the primary and continuing obligations of Pierse to grant, and Liberty to take, a grant of the Lease of each apartment.
12. Mr Dowding then submits that the reason for the use of the expression "Completion Date" in clause 15(g) is that it is apparent that the draftsperson had in mind that actual completion would take place on the contractual completion date. That is apparent, he submits, from clause 15(h)(ii), which requires Liberty "on (and as a condition of) completion of the Lease" to make the balancing payments to Pierse "on the Completion Date". He also observes that the fact that the balancing payment is expressly made a condition of completion of the Lease shows that Liberty is envisaged to have a continuing commercial interest in the grant of the Lease even after the contractual completion date.
13. Mr Dowding submits that, in the light of those considerations, the only way in which consistency can be given to the Agreement, and clause 15(h) (iii) can be given a proper meaning in accordance with its language, is to read the expression "the Completion Date" in clause 15(g) as referring to actual completion, should actual completion (contrary to the contemplation of the draftsperson) take place later than the contractual completion date.
14. Mr Dowding submits that such an interpretation of the Agreement is consistent with commercial reality. Pierse obtained no commercial benefit, he said, from the substitution of Third Party Purchasers for Liberty in respect of any apartment, bearing in mind the balancing payment to be made by Pierse under clause 15(h)(i). Furthermore, subject only to the Third Party Purchaser being "bona fide", there was no provision for Pierse to veto such purchasers nominated by Liberty under clause 15(a) of the Agreement. There could be no commercial reason, in those circumstances, for Pierse to agree to release Liberty from its primary obligation to purchase the apartments before actual completion of each TPP Agreement.
15. Notwithstanding the elegance and skill of Mr Dowding's submissions and the care that the Judge gave to analysing the rival arguments, I consider that the Judge arrived at the wrong interpretation of the Agreement. He failed to give proper weight to the clear express provisions of clause 15(g). He appears to have concluded that he was obliged to give those provisions a meaning other than their ordinary meaning in order to make sense of clause 15(h)(iii) and commercial realities. In my judgment, it was neither necessary nor correct for him to take that approach.
16. The expression "the Completion Date" in clause 15(g) was, as the Judge acknowledged, a defined expression. By virtue of the cross-reference to clause 5(A) of the Agreement, the expression was defined to mean the contractual completion date. That was reinforced by the terms of clause 8, which specified what was to take place on "the Completion Date". It would be a highly unusual approach to interpretation to give the expression in clause 15(g) a meaning other than that expressly ascribed to it by the parties, especially since the parties did not state that the definition was subject to any contrary intention apparent from the Agreement. If the expression "Completion Date" in clause 15(g) is given its defined meaning, that clause is perfectly clear: where an apartment is subject to a TPP Agreement, Liberty is released on the contractual completion date specified in the Agreement from its obligation to complete the acquisition of the Lease of the relevant apartment, but without prejudice to its continuing obligation to make the payment under clause 15(h)(ii) on completion of the TPP Agreement. Moreover, that interpretation of "Completion Date" is consistent with the use by the parties of alternative language when referring to acts of completion, such as the opening words of clause 15(h) ("Subject to the Third Party Purchaser completing a Lease") and the expression "actual completion" in clause 20 of the Agreement.
17. I cannot see any compelling reason why the provisions of clause 15(h)(iii) require the expression "Completion Date" in clause 15(g) to bear a different meaning from the definition chosen by the parties themselves. I do not accept Mr Dowding's submission that the draftsperson contemplated only that actual completion would take place on the date of contractual completion. It was certainly the contractual obligation of the Third Party Purchasers to complete their respective TPP Agreements on the contractual completion date; and that explains the co-ordinated date for Liberty's contractual obligation to make the balancing payment on the contractual completion date under clause 15(h)(ii). The proviso in clause 15(g) expressly contemplates, however, that completion might not in fact take place on the contractual completion date, a possibility of which any conveyancer would be well aware. I do not accept Mr Dowding's submission that the proviso in clause 15(g) is simply by way of caution and was strictly unnecessary. It is clear, in my judgment, that the draftsperson was specifically pointing out and catering for the possibility that actual completion might take place after the contractual completion date.
18. The fundamental difficulty with the Judge's approach and Mr Dowding's submissions is that they require the defined expression "Completion Date" in clause 15(g) to have a meaning other than that expressly ascribed to it by the parties themselves. Further, the combination of that interpretation and their interpretation of clause 15(h)(iii) makes clause 15(g) redundant. In my judgment, the better approach is to give the expression "Completion Date" in clause 15(g) the meaning specifically ascribed it by the parties, and to read the opening words of clause 15(h)(iii) as merely emphasising that, once the balancing payments have been made under clause 15(h) (i) and (ii) and the grant of the Lease has been completed, there are no further obligations of Pierse and Liberty to each other under the Agreement. The use of "released" in that non-technical sense is consistent with the continuing obligation of Liberty, expressly acknowledged in clause 15(g), to make the balancing payments on completion and what both counsel have acknowledged to be the imperfect drafting of the Agreement.
19. In short, the better approach to the meaning of clause 15(h)(iii) is to treat it as what has been called a "sweep up" or, as it has also been called in the course of oral submissions, "a lawyer's belt and braces". If, which I do not accept is the case, it is necessary to choose between giving a strained interpretation to either clause 15(g) or clause 15(h)(iii) of the Agreement in order to provide consistency, then it seems to me clearly preferable to do so in relation to the first two lines of clause 15(h)(iii) rather than the expression "the Completion Date" in clause 15(g), to which the parties have themselves ascribed a particular meaning. In the words of Mr Seitler, that approach would cause "the least linguistic barbarism".
20. What is notable is the complete absence of any provision in the Agreement dealing with the possibilities and practicalities should Liberty, on Mr Dowding's approach, remain liable to complete the grant of a Lease to an apartment subject to a TPP Agreement, in particular in relation to how Liberty was to complete the TPP Agreement without being able to grant a Lease itself and being able merely to assign a Lease, and what was to happen, for example, in relation to the deposits received by Pierse under both the Agreement and the TPP Agreements and as to any mechanism by which the deposits under the TPP Agreement were to be passed in whole or in part to Liberty.
21. Looking at the matter commercially, the contractual completion date was one of three obvious dates which might have been selected by Pierse and Liberty for the release of Liberty's obligation to complete the purchase of the Lease of an apartment which was the subject of a TPP Agreement. The most favourable of these three, from the perspective of Liberty, would have been the date on which a TPP Agreement was entered into. The most favourable from the perspective of Pierse, would have been actual completion of the TPP Agreement.
22. The third obvious possibility, the contractual completion date, would have been of some advantage and some disadvantage to both Liberty and Pierse; it would have been a compromise date. Notwithstanding that the selection of that date would, for at least a period of time, namely between the date of the Agreement and the date of practical completion under the Agreement, give rise to overlapping contractual liabilities, potentially of both Liberty and of a Third Party Purchaser, nonetheless the selection of that date would have made sound commercial sense. The overwhelming likelihood, which proved to be the reality, was that Pierse would ensure that the contractual completion date under each TPP Agreement would be aligned with the Completion Date under the Agreement. Up to that date there would be very limited circumstances in which a TPP Agreement might come to an end. They would include rescission (for example, for misrepresentation) and the insolvency of the Third Party Purchaser. There would be no grounds for claiming damages against the Third Party Purchaser or for forfeiting the Third Party Purchaser's deposit because the contractual date for completion would not yet have arrived. The ability to hold Liberty to its obligation to complete under the Agreement would, therefore, have been important in relation to that period. Once the contractual date for completion of the TPP Agreements had arrived, however, the position was quite different. Pierse would be entitled to damages from a Third Party Purchaser for delaying completion after that date; further, Pierse could make time of the essence by serving a notice to complete under the Standard Conditions of Sale and, if that notice was not complied with, Pierse could accept the repudiatory breach of the Third Party Purchaser, forfeit the deposit under the TPP Agreement whilst also, on the face of the Agreement, retaining the deposit paid by Liberty apportionable to that apartment, and claim damages for the difference between the contract price and the (lower) market value. The availability of those remedies would make far less compelling the need to retain any obligation of Liberty to complete the purchase of the Lease of the relevant apartment.
23. The fact that the parties negotiated that middle course, in the light of that commercial reality, is supported not only by the clear and express terms of clause 15(g) but also by the absence of any provision in the Agreement for enabling Liberty, were it to be under an obligation to complete the purchase of the Lease of an apartment subject to a TPP Agreement after the contractual completion date, to obtain any part of the deposit paid to Pierse under the TPP Agreement. Instinctively, the Judge felt that this was a curious position. He was correct to do so.
24. Mr Dowding submitted that, giving the Agreement as a whole a coherent and sensible commercial meaning, there must be implied a mechanism for transferring to Liberty in those circumstances the benefit of the deposit paid under the TPP Agreement. There does not appear, however, from the face of the Agreement or by virtue of commercial necessity, any need or indeed right to imply any such significant term. The Agreement can properly be viewed as being intended to confer on Pierse the commercial advantage of retaining, in relation to any apartment subject to a TPP Agreement, the deposits paid; that is, the apportionable part of the deposit paid under the Agreement by Liberty and the deposit paid under the TPP Agreement. It is perfectly feasible, on the face of the Agreement, to view that as a kind of financial commission retained by Pierse in any event; and indeed, in my judgment, that is the answer, or at least part of the answer, to Mr Dowding's submission that there was no commercial advantage to Pierse whatever in the arrangements for the nomination of Third Party Purchasers. The nomination of such purchasers would, on any footing, whether or not the TPP Agreements were completed, leave Liberty with the commercial advantage arising from the ability to retain the deposits paid.
25. The skeleton arguments of Mr Seitler advanced a number of other arguments, and indeed these were to some extent supplemented in his oral submissions. I did not find them, however, more persuasive than the ones to which I have already referred, and I do not consider it is necessary to consider them further.

Conclusion.

26. For those reasons I would allow this appeal.

Lord Justice Ward:

27. I agree.

Lord Justice Sullivan:

28. And so do I.

Order: Appeal allowed

Case No: A3/2009/0866

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE (CHANCERY DIVISION)

LIVERPOOL DISTRICT REGISTRY

HIS HONOUR JUDGE HODGE QC

CLAIM NO. 8LV30087

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21st December 2009

Before : LORD JUSTICE WARD LORD JUSTICE ETHERTON
and LORD JUSTICE SULLIVAN Between :

	Liberty Property Investment Limited	Appellant
	- and -
	Pierse Developments Limited	Respondent

Jonathan Seitler QC (instructed by Davies Arnold Cooper ) for the Appellant Nicholas Dowding QC and Nicholas Riddle (instructed by Brabners Chaffee Street LLP) for the Hearing date: 24th November 2009 REASONS FOR THE DECISION ON COSTS

Lord Justice Ward :

29. We have ordered the respondent to pay the appellant's costs of the claim, the costs in the Court below and the costs of the appeal, those costs to be the subject of a detailed assessment on a standard basis if not agreed.
30. Our reasons for doing so are as follows:

(1) This was a short case where the parties ought to have submitted proper schedules of costs so that the Court of Appeal could undertake the assessment, at least of the costs in the Court of Appeal. That was not properly done. We accordingly endeavoured to assist the parties by suggesting that if the costs' schedules were submitted to us with the respondent having suitable opportunity to comment about those costs, then we would undertake that exercise on paper in order to save the costs of assessment. That was not done for reasons we do not fully understand. In the result we have no real option but to send the costs to the costs judge for assessment by him. That may involve two separate assessments, one in respect of the costs of the Court of Appeal and the other the costs of the claim in the proceedings heard below. The costs of those assessments will be borne as the costs judge directs.