England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice The Rolls Building Fetter Lane London, EC4A 1NL
		29 October 2012

MR JUSTICE NORRIS
1. I handed down judgment in this matter on 22 October 2012. That same day Ms Diamond issued an application ("the Eleventh Application") seeking a variation of my Order. She asked for it to be dealt with without a hearing or in an ex parte telephone call.
2. The variation sought was an Order

"..that the Claimant should instruct Faron Sutaria to market 27 Staveley Road Chiswick property at a price of £1,100,000 on a joint agency fee basis total of 1.25% plus VAT where the introducing selling agent gets 1% and the other agents share 0.25% the new joint agents to employ professionals to prepare well detailed property details (glossy brochures with emphasis on extensive renovations already completed) to be used for full marketing campaign to extend to Tuesday 18 December 2012 (to allow final viewings on week-end following 14 December) Defendant Ms Diamond to approve full detailed marketing brochures and photographs being prepared and used directly with the agents whom must liaise with Defendant directly throughout campaign"

3. The following day Mr Philip Pike, the Assistant Manager of the Chiswick branch of Faron Sutaria wrote to me directly asking that his firm be instructed on the sale.
4. The attempt to conduct private correspondence with a judge in the course of his or her handling of a case is highly improper. I directed that it should cease. Ms Diamond's response was to indicate that she intended to make a further or amended application to the Chancery Applications judge.
5. I shall rule on the Eleventh Application without a hearing. I have not called for submissions from Mr Taylor.
6. I made the judicial decision to direct Mr Taylor to appoint as additional agents Messrs Barnard Marcus because on 4 October 2012 Faron Sutaria had written (in a letter faxed on 5 October 2012 directly to the Court):-

"To achieve the maximum amount for you property (and therefore fulfil the courts duty of care obligation to achieve the best price possible) it is crucial that it is marketed with us on a sole agency basis with full marketing campaign…"

This did not strike me as a credible professional opinion. Quite apart from misstating the relevant duty and misunderstanding by whom that duty was owed the letter seemed to me more an assertion by a firm of estate agents desperate to get instructions and prepared to say whatever was necessary to do so.

7. I was informed by Counsel for Mr Taylor that, on the other hand, Barnard Marcus were prepared to contemplate joint instructions with the existing agents. Since it was Mr Taylor that was selling as chargee in possession and since the Order dated 24 October 2011 had given the conduct of the sale ordered by the Court to his solicitors, the primary choice of agents was for Mr Taylor: I was not prepared to direct him to disinstruct the agents of his choice (including a sub-agent of Ms Diamond's choice) and to instruct sole agents of Ms Diamond's choosing. His revised agency team must, of course, co-operate to offer the property to the market at a single price as directed by my order.
8. From 2 April 2010 (when Mr Taylor's notice to complete expired) until 24 October 2011 (when the Court made orders regarding the sale) Ms Diamond has been entirely free to organise her own sale of Staveley Road (using agents of her choice) in order to raise the purchase price of Ridgemount (assuming she no longer has the cash she must have had when bidding as a cash buyer at auction). She did not take that opportunity and must recognise that she no longer has control over the process of sale.
9. I see no ground on which to vary the Order I have made (even if Faron Sutaria have thought better of the position they adopted on 4 October 2012 and now wish to have the property on their books).
10. Nor do I see any reason further to extend the marketing period. Mr Taylor has nine potential purchasers lined up after what can be strongly argued is a fair exposure to the market. It is only the strident terms in which Ms Diamond's agents write and the ease with which they say a sale is achievable that has caused me to direct him to allow one of them to participate in the process. If there is such a queue of potential buyers at £1 million or more, then 6 week's exposure to the market suffices (and minimises the prejudice to Mr Taylor). Part of the material Barnard Marcus have placed before the Court is their achievement of a recent sale within 4 weeks. To allow 6 weeks is a fair balance.
11. I should make clear (since Ms Diamond's application appears to proceed on a misapprehension as to who has conduct of the sale) that the ultimate decision on which offer to accept is that of Mr Taylor as chargee in possession (not Ms Diamond): and that Mr Taylor is entitled to have regard not only to the price offered but also to all the other circumstances attending the offer e.g. size of deposit, availability of finance, speed of completion, dependence upon another sale etc.