Christie Owen and Davies Ltd v Awan and Another

Lord Justice Laws:

This is a renewed application for permission to appeal against a judgment of HHJ Pearce given in the Luton County Court on 4 September 2009. The learned judge upheld the claimant's claim for estate agency fees and gave judgment of £48,000-odd, including interest. The applicants, the defendants below, also seek a stay of execution. Permission to appeal to this court was refused on consideration of the papers by Waller LJ on 18 February 2009. The first applicant, Mr Awan, has addressed me in person this morning.

There is a somewhat convoluted history to the case, although the essential facts are relatively short. However they need to be carefully explained, given the complexity of the applicants’ arguments. The applicants are husband and wife; they were shareholders of, and at least one of them a Director of, Premium Care Homes Limited, which owned a nursing home known as Penhellis House (“Penhellis”). They formed a sole agency agreement with the respondent estate agents, Christie Owen, on or around 10 February 2006 for the marketing of Penhellis. The agreement was formed through correspondence which was before the judge, and is now before me. It required Christie Owen to accept a variation to their standard terms and provided for an initial term of three months.

On 13 March 2006, within the currency of the initial term of the agency agreement, a lady then called Miss Alexander Maggs, now Mrs Lunn, phoned Christie Owen and stated that she and her partner, Mr David Lunn, were interested in Penhellis and asked for copies of the business accounts. A viewing of Penhellis by, I think, Mr Lunn was arranged on 16 March 2006. There followed a number of offers made by the Lunns which were rejected by the first applicant. After the initial offer had been rejected Mr Harvey, of the respondents, met with the Lunns to attempt to persuade them to up their offer.

As a result of advice they received, the Lunns decided to incorporate themselves as a company for the running of care homes through which they would purchase any further homes. While the Lunns continued to be interest in, and pursue, the possible acquisition of Penhellis, they also directed their attention to another home, which was called Moresk. They initially named their company Moresk Care Homes Limited. However, the purchase of Moresk fell though.

On September 2006 Mr Awan, the first applicant, began to deal directly with Mr Lunn. He told Mr Lunn that Christie Owen had been removed from marketing the business. But this was not true, because Mr Awan had immediately beforehand been in touch with Mr Harvey of the firm, disclosing his desire for further attempts to market the business. Mr Awan in fact accepted that the agreement continued until November or December 2006, when he wrote a letter to Christie Owen requesting that the property be removed from the sale register.

All these matters were dealt with by the learned judge in her judgment at paragraphs 22 to 24 inclusive. The Lunns continued to be interested in Penhellis and matters progressed. At length, on 31 May 2007, the name of the company, Moresk Care Homes Limited, was changed to Glen Care Homes Limited. That was a name deliberately not linked to any particular property. After further discussions between Mr Awan and Mr Lunn contracts were at length exchanged on 7 August 2007 with Glen Care Homes Limited being the purchaser. No agency fee was paid by Mr Awan to the respondents. The respondents subsequently discovered that the property had been sold. They sent a letter before action dated 8 February 2008. At first there was no response. The letter was chased, and Mr Awan stated that Christie Owen were not owed any payment. The claim was issued on 31 March 2008.

There are one or two short matters that I should mention first. There was a history of non-compliance with procedural directions by Mr Awan. When the case came before...