Rolls Building, Fetter Lane,EC4A 1NL
B e f o r e :
| Anuj Shah
|- and -
|(1)Susanah Eforma Greening
(2) The Estate of George Harry Greening
Charles Irvine (instructed by Fisher & Myftari) for the Defendants
Hearing dates: 28th and 29th October 2015
Crown Copyright ©
Master Bowles :
(1) Mortgage brokerage fees were payable to Neel Shah, under invoices issued by his company, Cogent Financial Services Ltd, in the sum of £600, in respect of the original mortgage offer and an extension to that offer. Although the mortgage offer indicated that some £400 of those fees were refundable in the event that the mortgage did not complete, Mr Shah told me (and it was not challenged) that, under his own terms of trading the fees were payable and had been paid. Those wasted fees are recoverable from the Defendants.
(2) Likewise, post exchange insurance taken out by the Claimants and now wasted are recoverable, as are the expenses incurred in arranging the abortive mortgage, in the overall sum of £815.00 (£23 being excluded because it related to the CHAPS fee for the deposit payment and which has not been, therefore, wasted expenditure).
(3) Removal fees of £1,800 are sought by the Claimants (described as removal fees to and from interim accommodation). What seems to have occurred is that, on the initial failure to complete, Dishit and his family moved, temporarily, to a property at 58 Christchurch Avenue and, subsequently, in September, to the Beaufort Avenue address. When completion, eventually, takes place, they will have to pay again to move to the Property. Although the detail of these removal costs would not have been contemplated by the Defendants at the contract date, as possible damages arising from non-completion, the prospect of such fees arising, in the event of breach and in the event that Dishit, because of the breach, had to move his effects into temporary accommodation, was plainly in contemplation. Accordingly, as I find, those fees are recoverable in their totality.
(4) A claim is also made for legal fees, apparently incurred up to exchange of contracts. I do not regard those fees as recoverable. They were incurred to achieve the exchange that has taken place and which will lead to completion. They are not wasted.
(5) The two outstanding heads of claim are the fees incurred by the Claimants in arranging bridging finance at the time of the Part 24 application and loss of earnings said to have been caused by the failure to complete.
(6) The unchallenged evidence of Neel Shah is that a fee of £4,800 has been incurred in respect of the acquisition of bridging finance, which, of course, would not have been required had completion taken place when it should. The acquisition of loan finance and the fees associated with such finance, including the brokerage and arrangement fees, discussed above, and these bridging loan fees, are, in this day and age, the everyday commonplaces of any purchase of land and the risk of such fees being wasted and lost in the event of a non-completion are, accordingly, losses of a type that the Defendants should have had in mind, as arising in the ordinary course of events, should they wrongly fail to complete and, as such, recoverable as damages.
(7) I do not think, however, that Dishit should have his claimed loss of earnings. I was given very little explanation as to why, or how, the failure to complete caused Dishit to be unable to work. Nor do I readily see how this absence from work would, or should, have fallen within the Defendants' contemplation, at the date of contract, as a potential consequence of their breach of contract. I was, also, somewhat unimpressed with his evidence that he could go to some building site, pretty well at whim, and secure such work as he chose. In comparison to his other evidence, I found this very unconvincing. Taking it all together, I do not think, therefore, that the allegation of recoverable lost earnings is made out.