BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
CHANCERY DIVISION
Fetter Lane London, EC4A 1NL |
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B e f o r e :
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THANDI |
Claimant |
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- and – |
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SAGGU |
Defendant |
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MR J SARKER (of Counsel) appeared on behalf of the Defendant.
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Crown Copyright ©
MR JUSTICE ADAM JOHNSON:
Introduction and background
"By signing, Mr T Saggu will/also has a duty to waive the £15,000 owed to his company for works undertaken at Kinders [that is Mrs Thandi's residence] at 8 Heather Drive, Dartford, DA13 3LE earlier in 2017. This credit note will be issued by Mr T Saggu on completion of the purchase, 5-7 Parkside Parade."
Legal principles
(a) Is there a serious issue to be tried?
(b) Will damages be an adequate remedy for either side? and
(c) Where does the balance of convenience lie?
(i) The overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be "wrong" in the sense of granting an interlocutory injunction to a party who fails to establish his right at trial or would fail if there was a trial or, alternatively, in failing to grant an injunction to a party who succeeds or would succeed at trial.
(ii) In considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage may well carry a greater risk of injustice if it turns to have been wrongly made than an order which merely prohibits action, thus preserving the status quo.
(iii) It is legitimate where a mandatory injunction is sought to consider whether the court does not feel a high degree of assurance that the claimant will be able to establish this right at trial. That is because the greater the degree of assurance the claimant will ultimately establish his right, the less will be the risk of injustice if the injunction is granted.
(iv) But even where the court is unable to feel any high degree of assurance that the claimant will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice, if the injunction is refused, sufficiently outweigh the risk of injustice if it is granted.
Serious issue to be tried
Adequacy of damages
Balance of convenience
"What I understood about all three agreements was that I was agreeing to selling my property at 5-7 Parkside to Mr Saggu for a sum of £270,000. This was on the basis of a 10 per cent deposit on exchange, with £5,000 paid immediately and additional £5,000 paid within seven days, and the balance of £17,000 paid within four weeks."
"My solicitors have now explained to me that the Letters were not a simple agreement to pay £25,000 but rather an agreement to sell the property [i.e. Parkside Parade] to Mr Saggu. I had no idea this is what the Letters said. Mr Saggu never explained this to me and I did not get any legal advice. I do not recall ever even discussing the idea of selling the property to Mr Saggu."
"I have obtained advice from professional property developers and managers and I am satisfied that this development will provide more than sufficient source of revenue to pay off the MT Finance loan when the term expires, with a buy to let mortgage to cover both residential properties."
"If the court ultimately decides following trial that the letters dated 22 April 2018, 31 May 2018 and 4 June 2018 constitute a valid contract for the sale of 7 Parkside Parade, North End Road, Dartford, DA1 4RA, and if the defendant is granted specific performance of that contract, the claimant undertakes to take all necessary steps to ensure any charge in favour of MT Finance Limited is redeemed. The claimant further undertakes to sell her property at 8 Heather Drive, Dartford, DA1 3LE to secure the necessary funds to redeem the charge should such a sale be necessary."
Overall conclusion
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