Heywood v BDC. Properties Ltd (No 2)
Jurisdiction | England & Wales |
Judge | LORD JUSTICE HARMAN,LORD JUSTICE SALMON |
Judgment Date | 04 May 1964 |
Judgment citation (vLex) | [1964] EWCA Civ J0504-1 |
Court | Court of Appeal |
Date | 04 May 1964 |
[1964] EWCA Civ J0504-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Harman and
Lord Justice Salmon.
MR J. P. BROOKES, (instructed by Messrs. Arnold & Co., Agents for Messrs. Dunn & Baker of Exeter) appeared on behalf of the Appellants.
MR P. A. W. MERRITON. (instructed by Messrs. Beech & Beech) appeared on behalf of the Respondents.
This is a case of Greek against Greek. The Plaintiffs negotiated with the Defendants for the sale to them of certain sites for development near Exeter. The negotiations were conducted, as is often the way, subject to contract. Just before the contracts were exchanged the Plaintiffs had a better offer and, as they were legally entitled to do in the circumstances, called off the deal. The Defendants had in the meanwhile, when things were getting bitter between the parties, done what is often done by way of bringing pressure on the other side, that is, they registered estate contracts under section 6 (4) of the Land Charges Act, 1926, against the two Plaintiffs. That had the effect of holding up the Plaintiffs from completing their new and more profitable bargain.
The plaintiffs started this action for the negative relief of a declaration that there was no contract. They also asked for damages, but whether they seriously meant to press that claim, I do not know. The other relief for which they asked was the vacation of the estate contracts on the ground that there was in the correspondence relied on as justifying the registration nothing which could be possibly construed by the court as a contract. They moved the court in the action by way of interlocutory Motion to vacate the estate contracts. That matter has already been before the Court of Appeal. Mr. Justice Pennycuick in April, 1963, came to the conclusion that there was no shadow of contract on the correspondence relied on and made an Order vacating the estate contracts, and that was supported in this court on the 14th June of last year.
But the Defendants had not fired their last shot. Two or three days before the Court of Appeal made their decision they applied for and succeeded in obtaining the Registration of what was called a lis pendens against the land, which, of coarse, Is a notice to all the world that there is a lawsuit pending regarding that land and would, therefore, I should have thought, frightened off any purchaser.
The Plaintiffs, thus frustrated, reacted after some delay. On the 7th November they took out the summons now before us to vacate the lis pendens. Why, having proceeded by Motion in the first case they should have resorted to the statutory jurisdiction of a summons in the second passes ay comprehension. Mr. Justice Tomlin, a great master of Chancery procedure, used to say that anything you could do by summons you could do by Motion....
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