Jersey Unreported Judgments

[2005]JRC019

royal court

(Samedi Division)

 

23^rd February 2005

 

 

 

 

Claim for contractual damages, pursuant to alleged breach of the express terms and conditions of a share sale agreement.

 

Advocate P C Sinel for the Plaintiff.

Advocate D J Benest for the Defendants.

 

judgment

bailiff:

Introduction

1.        On the borders of Cambridgeshire and Northamptonshire there is a fine country house called Shortwood.  It is set in over 100 acres of land and includes one of the finest equestrian centres in England.  It was constructed to a high specification by Ian Blatchley, who is a property developer.  He intended to occupy it with his family.  Unfortunately, before he could take up occupancy, his marriage fell into difficulties and he and his wife divorced.  He put the property on the market with Knight Frank, a well known firm of land agents.  It was seen by an American merchant banker, Philip Adkin, who became determined to acquire it.  He too was a keen equestrian.  It suited his purposes admirably.

2.        The negotiations were tortuous and difficult.  Mr Adkin first made contact with Knight Frank in September 2000.  He spoke to Edward Rook, a Chartered Surveyor of that firm and he visited Shortwood.  According to him, the asking price was £2.75 million.  Mr Adkins offered £2.2 million and then increased his offer to £2.5 million and on or about 9th October to £2.75 million.  By letter of 13th October Mr Rook informed Mr Adkin that this offer had been accepted.  Shortly afterwards it appears that there was a flood of some kind inside the house and water damage was caused.  Mr Rook undertook that the damage would be repaired.  Shortly afterwards Mr Adkin was informed that the price had increased to £2.9 million; he told Mr Rook that he was prepared to meet this price on condition that a Linn audio system was fully installed and that all loose farm and equestrian equipment was included.  We interpose that a Linn audio system is a system by which the user can access and control music output throughout a number of rooms from a keypad in each room.  A few days later the asking price was increased again to £2.975 million.  On 15th December 2000 Mr Adkin withdrew from the purchase negotiations.

3.        In early January 2001 Mr Adkin learned that the property was still on the market but now at £3 million.  Mr Adkin then engaged Richard Clowes, a chartered surveyor of the firm Fisher German, to negotiate on his behalf.  So far as Mr Adkin was concerned, there was no longer any basis of trust between him and Mr Blatchley, and that feeling was mutual.  Mr Clowes did not disclose the identity of his client to Mr Rook, but Mr Blatchley surmised that the client was Mr Adkin.  This led him, he said, to be cautious and he asked Mr Rook to take great care that the prospective purchaser was aware of what was being sold.  According to Mr Adkin the asking price was again increased to £3.25 million and it was at that figure that agreement was finally reached. 

4.        The sale was concluded by means of a share vending agreement.  Shortwood has been conveyed into the name of Hudson Investment Holdings Limited ("Hudson") and the shares in Hudson were held by the first defendant, Lincoln Nominees Limited, for the second defendant, Lincoln Trust Company Limited, in its capacity of trustee of the Lantau Trust.  The purchaser of the shares in Hudson was a Guernsey company, Bespoke Investments Limited, the plaintiff.  Nothing turns on these arrangements.  The agreement was executed on 21st February 2001.

5.        Completion took place on Friday 23rd February 2001.  Mr Clowes attended at Shortwood and took possession of the property from Mr Blatchley.  There seems no doubt that Mr Clowes spent some time at the house.  According to Mr Blatchley, Mr Clowes was there for at least two hours.  He was shown through the entire house and estate.  At one stage he retired to telephone his client and he was authorised to proceed to completion.  A last minute modification of the agreement related to a mobile home at the property; this was added to the schedule of fixtures, fittings and equipment for an additional £5,000, making a total consideration of £3,255,000.

The dispute

6.        Shortly after completion complaint was made on behalf of Mr Adkin that certain items had been removed from the property, and that the Linn audio system and CCTV security system had not been fully installed as provided for in the contract.  The disputed elements can be summarised as follows -

(i)        the Linn audio system;

(ii)       CCTV security system;

(iii)      washing machine and tumble drier;

(iv)      Allet cylinder mower;

(v)       STIHL strimmer;

(vi)      Equestrian saddles.

The law

7.        The proper law of the contract is English law.  Clause 15.7 of the share vending agreement provides expressly -

"The construction, validity and performance of this agreement are governed by the laws of England and Wales".

8.        The Court has received no evidence of English law.  No affidavits have been placed before us nor has any witness been called to testify as to the law applicable to the issues which we have to resolve.  Both parties were content however to agree that passages from the Chitty on Contracts (28th Ed'n) represented the relevant law which this Court had to apply.  Both parties relied upon different passages, but they agreed that it was for the Court to determine how these different principles were to be applied to the facts of this case.

9.        Mr Sinel for the plaintiff referred to the General rules of construction in Chitty on Contracts.  Paragraphs 12-041, 12-043 provide -

Construction.  The word "construction" refers to the process by which a court determines the meaning and legal effect of a contract.  As such, it will embrace oral contracts as well as those in writing and implied terms as well as those  that are expressed.  In this chapter, however, the "rules of construction" discussed in the following paragraphs have mainly been developed in relation to written documents, and in this context "construction" denotes the process (sometimes referred to as interpretation) by which a court arrives at the meaning to be given to the language used by the parties in the express terms of a written agreement.

12-042             Object of construction.  The object of all construction of the terms of a written agreement is to discover therefrom the intention of the parties to the agreement.  The rules which govern the construction of contracts are the same at law and in equity, for simple contracts and for specialties. 

12-043             Intention of the parties.  The task of ascertaining the intention of the parties must be approached objectively: the question is not what one or other of the parties meant or understood by the words used, but "the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract".  The cardinal presumption is that the parties have intended what they have in fact said, so that their words must be construed  as they stand.  That is to say the meaning of the document or of a particular part of it is to be sought in the document itself.  "One must consider the meaning of the words used, not what one may guess to be the intention of the parties".

10.      Counsel for the plaintiff also referred to paragraph 12-070 -

Parties' intention.  It is not open to the court to revise the words used by the parties, or to put upon them a meaning other than that which they ordinarily bear, intended or ought to have intended.  But if, from the document itself and the admissible background, the intention of the parties can reasonably be discerned, then the court will give effect to that intention even though this involves departing from or qualifying words used.

11.      Further passages were prayed in aid by both counsel on the extent to which extrinsic evidence was admissible to affect the content of a written agreement.  Mr Sinel referred to paragraph 12-094 and part of 12-095 which provides -

Whether document conclusive.  It is often said to be a rule of law that "If there be a contract which has been reduced to writing, verbal evidence is not allowed to be given ... so as to add or to subtract from, or in any manner to vary or qualify the written contract.  Indeed, in 1897, Lord Morris accepted that "[p]arol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract, or the terms in which the parties have deliberately agreed to record any part of their contract."  This rule is usually known as the "parol evidence" rule.  Its operation is not confined to oral evidence:  it has been taken to exclude extrinsic matter in writing, such as drafts, preliminary agreements, and letters of negotiation.  The rule has been justified on the ground that it upholds the value of written proof, effectuates the finality intended by the parties in recording their contract in written form, and eliminates "great inconvenience and troublesome litigation in many instances."

However, the parol evidence rule is and has long been subject to a number of exceptions.  In particular, since the nineteenth century, the courts have been prepared to admit extrinsic evidence of terms additional to those contained in the written document if it is shown that the document was not intended to express the entire agreement between the parties.

12.      Mr Benest submitted that evidence was however admissible to aid the interpretation of the agreement.  He referred to paragraphs 12-115 to 12-117 which provide -

12-115             Evidence in aid of interpretation.  Different considerations apply to the admissibility of extrinsic evidence to interpret or explain a written agreement.  Extrinsic evidence of this sort does not usurp the authority of the written document or contradict, vary, add to or subtract from its terms.  It is the writing which operates.  The extrinsic evidence does no more than assist in its operation by assigning a definite meaning to terms capable of such explanation or by pointing out and connecting them with proper subject-matter.  Accordingly, no "parol evidence rule" (in the sense referred to above) will apply to such a situation.  However, the nature of the evidence that may be adduced, and the purposes for which it may be used, are subject to certain restrictions imposed by the law.

12-116             Evidence of surrounding circumstances.  The willingness of the courts to admit extrinsic evidence as an aid to the interpretation of a written contract was established as long ago as 1842 by Tindal C. J. in Shore v Wilson, where he said:

"The general rule I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that in such case evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible....  The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party."

But under the older restrictive view expressed in this statement, and endorsed in a number of subsequent cases, extrinsic evidence is admissible only where the sense and meaning of the words of the written instrument is doubtful or difficulty arises when it is sought to apply the language of the instrument to the circumstances under consideration.  If the words have a clear and fixed meaning, not capable of explanation, extrinsic evidence would not be admissible to show that the parties meant something different from what they have written.  The more modern view, however, is that the words do not have to be vague, ambiguous or otherwise uncertain before extrinsic evidence will be admitted.  Since the purpose of the inquiry is to ascertain the meaning which the words would convey to a reasonable man against the background of the transaction in question, the court is free (subject to certain exceptions) to look to all the relevant circumstances surrounding the transaction, not merely in order to choose between the possible meanings of words which are ambiguous but even to conclude that the parties must, for whatever reason, have used the wrong words or syntax.  So the court is entitled (and, indeed, bound) to enquire beyond the language of the document and see what the circumstances were with reference to which words were used, and the object appearing from those circumstances which the person using them had in view.  The court must place itself in the same "factual matrix" as that in which the parties were.  In Reardon Smith Line Limited v. Yngvar Hansen-Tangen, Lord Wilberforce said:

"No contracts are made in a vacuum; there is always a setting in which they have to be placed.  The nature of what is legitimate to have regard to is usually described as 'the surrounding circumstances' but this phrase is imprecise:  it can be illustrated but hardly defined.  In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating."

He further stated that, just as the intention of the parties is to be ascertained objectively, so also "when one is speaking of aim, or object, or commercial purpose, one is speaking objectively of what reasonable persons would have in mind in the situation of the parties."

12-117             On the other hand, although evidence of the facts about which the parties were negotiating is admissible to explain what meaning was intended, the court is not entitled to look at what the parties to the contract said or did whilst the matter was in negotiation nor are drafts or preliminary agreements admissible in aid of its interpretation, except where it is sought to rectify the document or to show that the parties negotiated on an agreed basis that the words used bore a particular meaning.  Evidence will also not be admitted to show what were the parties' subjective intentions with respect to the words used.  "The general rule seems to be that all facts are admissible which tend to show the sense which the words bear with reference to the surrounding circumstances of and concerning which the words were used, but that such facts as only tend to show that the writer intended to use words bearing a particular sense are to be rejected.  In Prenn v. Simmonds, Lord Wilberforce summed up the position as follows:

"In my opinion, then, evidence of negotiations, or of the parties' intentions, and a fortiori of [the plaintiff's] intentions, ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction."

13.      Finally Mr Sinel drew attention to paragraph 12-102 which provides -

"Entire agreement" clauses.  The practice has developed of including in written agreements of a formal character an "entire agreement" clause, for example:

"This Agreement contains the entire and only agreement between the parties and supersedes all previous agreements between the parties respecting the subject-matter hereof; each party acknowledges that in entering into this Agreement it has not relied on any representation or undertaking, whether oral or in writing, save such as are expressly incorporated herein."

The purpose of such a clause is to achieve, by a somewhat roundabout route, the exclusion of liability for statements other than those set out in the written contract.  The effect of the clause will necessarily depend upon its precise wording.  But it is submitted that, in principle, an "entire agreement" clause will render inadmissible extrinsic evidence to prove terms other than those in the written contract, since the parties have by the clause expressed their intention that the document is to contain all the terms of their agreement.  However, the language of the clause may not be apt to exclude representations even if it excludes claims arising out of a collateral contract or warranty.

The written agreement

14.      We turn now to consider the relevant provisions of the share vending agreement.  The agreement for sale is contained in clause 2-1 which provides -

Subject to the terms and conditions of this agreement, the Seller sells with full title guarantee, and the Buyer buys, with effect from the Completion Date, the Shares and all present and future rights attaching to them.

The price was stated to be £3,255,000 payable on completion.  By clause 4.2.1.9 the vendor was obligated to deliver to the buyer on the Completion Date, inter alia, "at the Property, all of the Chattels, the ownership being transferred by delivery".  The Chattels were listed in the sixth schedule to the agreement.  At the foot of that schedule were the words "All contents and fixtures/fittings as described in Knight Frank's particulars of sale March 2000".  Those particulars of sale were therefore incorporated into the agreement.

15.      Finally, the agreement contained an "entire agreement" provision at clause 13-1 in the following terms -

Subject to paragraph 1.1 of schedule 2, this agreement and the documents referred to in it constitute the entire agreement between the parties with respect to the sale and purchase of the Shares and supersede all other agreements or arrangements, whether written or oral, express or implied, between the parties relating to the subject matter of this agreement.

Paragraph 1.1 of Schedule 2 provided -

The information set out in the schedules to this agreement and the written information relating to the Property supplied by the Seller's Solicitors to the Buyer's Solicitors are true and accurate in all material respects and not misleading.

Clause 15.6 provided that "No variations of this agreement are effective unless made in writing signed by the parties or their authorised agents".

Schedule of Loss

16.      We turn now to consider each disputed element set out in the particulars of claim.  The relevant parts of the re-amended plaintiff's schedule of loss provide -

Chattels included in the particulars of sale and referred to in paragraph 8 of the Amended Order of Justice that were not delivered as aforesaid or at all:	Approximate Cost (£)
1.  A Linn Audio system throughout the house with surround sound in the main reception room	114,589.81
2.  CCTV Cameras with alarm system and video entry at main front door	14,018.93
3.  Washing machine (Miele) and tumble dryer from the drying room	9,536.30

 

Chattels that were included in the said list but were not delivered as aforesaid or at all:
8.  Rotary hand mower (Allet cylinder mower)	3,238.30
9.  STIHL strimmer	528.75
10.  Good quality equestrian saddles (x6)	3,270.00

The total claim amounts to £145,182.09.

Linn audio system

17.      Knight Frank's particulars of sale of March 2000 include under the heading "services" the words - "A Linn audio system has been installed throughout the house with surround sound in the main reception room".  The meaning of these words is in dispute.  The plaintiff contends that they mean that a functioning Linn audio system was in existence.  It is not in dispute that on the Completion Date the Linn audio system was not capable of functioning.  Speakers had been installed in the ceilings and Radio Control Units (RCUs) had been fixed in the walls.  The wiring had been completed but other parts of the system, namely amplifiers, receivers, additional speakers and other equipment had not been installed.

18.      The defendant contends that the plaintiff received what it had contracted to buy.  The Court heard a great deal of evidence from both chartered surveyors as to negotiations which had taken place during the weeks leading up to completion and their respective understandings as to whether work on the Linn audio system was to be completed.  It also heard evidence from Mr Adkin and Mr Blatchley as to a conversation which took place between them at Shortwood during October 2000 when Mr Blatchley allegedly promised that certain Linn equipment in sealed boxes in the equestrian centre would be installed.  Mr Blatchley denied that that promise was made.

19.      We do not find it necessary to describe in detail the evidence on this dispute, nor to resolve the conflicts of evidence between Mr Adkin and Mr Blatchley and between Mr Rook and Mr Clowes.  Applying the principles of law which we have been invited to apply, we think that the meaning of the words in the Particulars of Sale is clear.  The cardinal presumption being that the parties have intended what they have in fact said, the meaning is to be found in the document itself.  Looking at the matter objectively, we have no doubt that the sentence in the Particulars cited at paragraph 17 above means that the Linn audio system had been installed and was capable of functioning.  A statement that there is "surround sound in the main reception room" is not reconcilable with a state of affairs where there is no sound because the necessary equipment has not been installed.  Counsel for the plaintiff drew our attention to a dictionary definition of "system".  The New Shorter Oxford English Dictionary provides, as its first meaning, "a group or set of related or associated material ... things forming a unity or complex whole".  What was found at Shortwood was not a "unity", because it was incomplete.  We draw further support for this conclusion from other provisions of the Particulars of Sale.  Under the heading "Leisure facilities" there is the sentence "there are open beams to the ceiling and a facility for an outdoor hot tub".  An outdoor hot tub had not been installed, but the appropriate wiring and plumbing provision had been made for such a tub.  If the Particulars of Sale had stated "There is a facility for a Linn audio system throughout the house", that would be consistent with a state of affairs where the necessary wiring and certain inbuilt pieces of equipment had been installed, but where the system was incomplete and did not function.  That was not however the contractual provision.

20.      Counsel for the defendant invited us to look at the circumstances surrounding the transaction and to place ourselves in the "factual matrix" in which the parties were.  He relied particularly on the evidence of Mr Rook.  There is certainly strong evidence that Mr Rook made it clear to Mr Clowes that the Linn audio system would not be completed.  There is no evidence however that that was accepted by Mr Adkin.  Our conclusion on the evidence is that whether or not the Linn audio system was to be completed was left rather in the air during the negotiations.  Mr Rook asserted that it would not be completed;  Mr Adkin was adamant that it should be completed.  We conclude that the "entire agreement" clause renders these discussions otiose.  Clause 13.1 of the share vending agreement provides the agreement "supersedes all other agreements or arrangements, whether written or oral, express or implied, between the parties relating to the subject matter of this agreement".  In our judgment the defendant failed to comply with its obligation to deliver a Linn audio system.  We accept the contention of the plaintiff that the words "A Linn audio system has been installed throughout the house" mean that Mr Adkin was entitled to take delivery of a functioning Linn audio system.

21.      What then is the measure of damages?  After the Completion Date a schematic drawing for a Linn audio system prepared by a firm of electrical engineers was found at the house.  On the basis of the schematic drawing, Mr Adkin obtained a quotation from a firm called Gibson Music for the completion of the installation.  An undated estimate in the sum of £94,668.63 ("the First Estimate") was obtained.  Subsequently Mr Adkin decided that he wanted a slightly modified Linn system installed to include the equestrian centre and the outside jumping ground, and he obtained a revised estimate from Gibson Music dated 14th December 2001 ("the Second Estimate") in the sum of £114,589.81.  It is that latter sum which the plaintiff claims.

22.      The existence of two estimates was initially the cause of some confusion.  The evidence of Stephen Fox made it clear however that the Second Estimate involved not only the equestrian centre and outside jumping ground but also the provision of rather better equipment in some respects than that specified in the First Estimate.  Mr Benest submitted that the contractual provision was for a system "throughout the house" but not in the equestrian centre nor the outside jumping ground.  We agree.  Furthermore we see no reason why the higher specification required by Mr Adkin should be the appropriate measure of damages.  Mr Benest submitted that even the First Estimate should not be regarded as the appropriate measure because the schematic drawing on which it was based was not a contractual document.  We agree that the drawing was not a contractual document, but we think that it does provide a reasonable indication of what a functioning Linn audio system means in the context of Shortwood.  It was the system designed for Shortwood.

23.      Mr Benest further submitted that the contractual provision was for an audio system and not the audio-visual system for which provision had been made in the Gibson Music quotation.  We accept that submission.  We also accept the evidence of Mr Fox as to the items in the First Estimate which are properly to be regarded as "visual" rather than "audio".  They are the Panasonic Display Monitor (£7,195), Custom Plasma bracket (£295), Panasonic Video Recorder (£675), Sony DVD Player (£695) and Sky Digital Decoder Box (£195).  These amounts total £9,055.  The evidence of Mr Fox was also that there was a measure of enhancement of the quality of equipment quoted in the master bedroom, ground floor office, first floor study, and large gym, compared with the schematic drawing.  The evidence of Matthew Tillman, sales director at Gibson Music, was that the quotation was based upon the schematic drawing.  On balance we prefer the evidence of Mr Fox who has carried out work for both Mr Adkin and Mr Blatchley.  The figures in the First Estimate relating to the rooms mentioned above total £10,965.12.  We propose to make a deduction of 10%, that is £1,096, in respect of that measure of enhancement.

24.      The net result is that we deduct £9,055 and £1,096 from the First Estimate and arrive at a figure of £84,517.63.  We award that sum in respect of this first head of claim.

CCTV security system

25.      Knight Frank's particulars of sale of March 2000 include under the heading "Services" the words - "A sophisticated alarm system has been fitted with CCTV cameras via television pictures.  Video entry at main front door".  The meaning of these words is also in dispute.  The plaintiff contends that they mean that a functioning alarm system is in existence.  It is not in dispute that on the Completion Date the alarm system was not functioning.  Provision had been made for an alarm system.  The wiring was in place, but a system had not been fitted.

26.      The defendant contends that the plaintiff received what it had contracted to buy.  The contention is that the plaintiff understood the particulars of sale to mean that no CCTV cameras or video entry were included in the sale. 

27.      For analogous reasons to those set out in paragraphs 19 and 20 above in relation to the Linn audio system, we do not accept that contention.  In our judgment it is clear from the particulars of sale which were incorporated into the contract that a functioning alarm system was to be delivered.  We conclude that the defendant failed to comply with its contractual obligations in this respect. 

28.      As to the quantum damages, the plaintiff obtained a quotation from Secura-Cam in the sum of £14,018.93.  Counsel for the defendant submitted that, if he were unsuccessful in his primary contention, the only obligation was to provide more than one CCTV camera (ie two).  Evidence was given by Mr Fox that the cost of two cameras would be between £500 and £600.

29.      We do not think that the provision of two cameras without any means of using them to view, via a monitor, who or what was outside could fairly be described as a "sophisticated alarm system".  We refer again to the everyday meaning of a "system".  On the other hand the quotation from Secura-Cam includes a number of optional extras in the form of four more cameras in addition to the four specified in the primary quote, and additional monitors and recorders of a higher quality.  The primary quote made provision for four cameras, a digital recorder in the main office, and a colour monitor.  The amount quoted for this equipment was £5,837 plus VAT.  We assume that VAT of 17½% is payable, and we calculate the total amount to be £6,858.47.  In our judgment this equipment would produce "a sophisticated alarm system" and we award damages under this head of £6,858.47.

Washing machine and tumble drier

30.      It is not disputed that these items, which were commercial machines capable of washing and drying horse blankets, were removed prior to completion.  The plaintiff has obtained a quotation for their replacement in the sum of £8,116 plus VAT.  We again assume that VAT of 17½% is payable, and we calculate this claim to be £9,536.30.

31.      Counsel for the defendant submitted that this sum should be discounted by at least 50% to take account of the age and usage of the machines.  We cannot accept this submission.  The defendant contracted to sell a Miele washing machine and tumble drier to the plaintiff, and failed to deliver them.  We do not see why the plaintiff should be obliged to scour the country for second hand machines obtainable at half the price of the new ones.  On the other hand there is an element of betterment in the sense that Mr Adkins will have newer and better machines than those which he contracted to buy.  Viewing the matter in the round we propose to apply a discount of 20% to take account of the betterment.  We therefore award damages of £7,629.04 in respect of this head of claim.

Allet cylinder mower and STIHL strimmer

32.      The plaintiff relies entirely upon the evidence of Stanley Height in relation to these heads of claim.  Mr Height is a gardener/groundsman who was employed by Mr Blatchley and is now employed by Mr Adkin.  Mr Height's evidence was that the Allet cylinder mower was put in the back of a removal van together with other equipment including the STIHL strimmer shortly before completion.  The plaintiff claims that both these items were included in the schedule of equipment which was sold with the property.  This evidence was not seriously challenged by the defendant, except to the extent that Mr Blatchley thought that the mower was not included in the sale.  A rotary mower was however listed in the schedule of chattels.  We see no reason to doubt the evidence of Mr Height.  Counsel for the defendant argued that some allowance should be made for the fact that this equipment was not new.  We agree that there is an element of betterment, and we will apply a discount of 20% in that respect.  We therefore award damages under this head totalling £3,013.63.

Equestrian saddles

33.      Mr Adkin gave evidence that during his visit to the property in October 2000 he saw a number of new or nearly new Stüben dressage saddles.  He asked whether these were included in the sale and Mr Blatchley told him that they were included.  After completion Mr Adkin asserted that only a number of inferior saddles were found at the property.  The Stüben dressage saddles had been removed.

34.      Mr Blatchley denied that there had been any such conversation.  He said that he had had a casual exchange with Mr Clowes about a box of used saddles which were in the equestrian centre.  Mr Blatchley claimed that he had said that they could have them if they wished.

35.      We also find it unnecessary to resolve this conflict of evidence.  The list of chattels in schedule 6 to the share vending agreement refers to "assorted saddles".  There is no dispute that some saddles were left at the property.  There was no specific contractual obligation to sell Stüben saddles of high quality.  This head of claim is therefore dismissed.

Conclusion

36.      In summary we find that the defendant was in breach of certain of its obligations towards the plaintiff.  We award damages for those breaches as follows -

(1)	Linn audio system	£84,517.63
(2)	CCTV security system	£6,858.47
(3)	Washing machine and tumble drier	£7,629.04
(4)	Allet mower and STIHL strimmer	£3,013.63
		£102,018.77

We order the defendant to pay that total sum to the plaintiff.

Authorities

Chitty on Contracts (28^th Ed'n): Chapter 12.

Inglis v. Battery (1878) 3 AC 552.

Jacobs v. Batavia and General Plantations Trust, Ltd [1924] 1 Ch. 287.

Prenn v. Simmonds [1971] 1 WLR 1381.

Perry v. Abraham [2003] JRC109A.