JOHN CROSSLEY STEARE (EXECUTOR of MRS GRACE PHYLLIS WALDER (Deceased)) v DAVID TISDALL and STEPHEN R NELSON and CONNELL RESIDENTIAL and ARUN ESTATE AGENCIES Ltd (trading as Wyatt & Son) and PETER DOUGLAS STEARE
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON |
| Judgment Date | 18 June 2004 |
| Neutral Citation | [2004] EWCA Civ 850 |
| Docket Number | B2/2003/0837 |
| Date | 18 June 2004 |
| Court | Court of Appeal (Civil Division) |
[2004] EWCA Civ 850
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HALLON)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
B2/2003/0837
The Applicant appeared on his own behalf
The Respondent did not appear and was not represented
This is an application by Mr JC Steare, as the executor of the will of his mother, Mrs Grace Walder. He seeks permission to appeal from the order made by Her Honour Judge Hallon in the Bromley County Court on 30th March 2004 dismissing his claim against the fourth defendant, Arun Estate Agencies Ltd ("Arun"). Arun trades under the name Wyatt & Son.
In 1994 Arun marketed and sold a property owned by Mrs Walder. Mr Steare says that it owed Mrs Walder certain duties which it performed negligently, causing her to suffer loss. Mr Steare in the same action also sued two solicitors who had acted for Mrs Walder, another firm of estate agents, Connell, and his own brother, the Rev Peter Steare, the attorney who acted under a power of attorney from Mrs Walder. The claims against those other defendants have been dismissed by consent or are not proceeded with. Only the claim against Arun proceeded to trial. However, because the judge was not satisfied that there was any breach of duty by Arun owed to Mrs Walder, the judge did not have to consider what damage flowed from the claimed breach of duty and so the claim was dismissed.
The facts can be stated shortly. Mrs Walder owned the freehold ground-floor flat at 42 Homefield Road in Worthing. This is in a semi-detached house built about the start of the 20th century. In 1949 a subsidence problem at the property arose, as a surveyor then reported. In 1976 the same surveyor reported that there had been no further movement. In that year Mrs Walder purchased the flat. She lived there until May 1994, when, being then in her late 90s, she was removed to a hospital and later to a residential home. She died on 8th February 1997.
Mrs Walder and the attorney in 1994 decided that the property should be sold. The attorney approached two estate agents. One was Connell. Connell advised an asking price of some £48,000. The other was Arun. It advised an asking price of between £28,000 and £31,000.
Connell was appointed by the attorney in June 1994 to market the property. It asked a surveyor, Mr Bromley, to advise informally on the condition of the property. He appears to have advised, as is apparent from a letter dated 1st September 1994 from the attorney to Mrs Walder's solicitors, that movement could still be taking place under a window and the foundations in that area needed underpinning and the brickwork stitched back. The surveyor drew attention to the heave which had taken place over a substantial area of the floors. All that, as I say, was known to the attorney. In consequence, Connell suggested in July 1994 that the asking price be reduced to £38,000. However, the only offers that Connell received were of £16,000, £18,000 and £20,000.
By September 1994 the attorney became concerned at the lack of success. He went back to Arun with a view to Arun taking over the marketing. On 5th September 1994 the attorney and Mr Ryan, a negotiator employed by Arun, met and Mr Ryan saw the condition of the property.
Mr Ryan was to give evidence to the judge, both in the form of a witness statement and in the form of oral evidence. His evidence was in effect not challenged. He said that at the meeting with the attorney on 5th September the attorney specifically brought to Mr Ryan's attention the structural problem. The floorboards in one bedroom dipped towards the corner and there was a corresponding crack in the external wall. The attorney specifically asked Mr Ryan to take all this into account in advising on what Mr Ryan called a realistic value for the property. Because the attorney was so sure that there was a problem which needed to be taken into account in fixing the asking price, Mr Ryan did not offer to introduce a surveyor. Mr Ryan himself had no professional qualifications. The attorney was very clear that the property was to be sold in its existing condition. Further, the attorney wanted a quick sale, given the time the property had already been on the market. The attorney did not say that he intended, or even considered, carrying out remedial works before the sale. He did not mention that the cost of any remedial work might be covered by insurance. The attorney wanted the property marketed for an early sale by private negotiation. However, Mr Ryan suggested that it should be put up for auction at the first available auction in case the property did not sell in the ordinary way.
Mr Ryan then returned to his office where he considered what should be the appropriate asking price. He obtained estimates from local builders of the cost of repairs. He consulted his manager. On 8th September he wrote to the attorney saying that he had calculated the renovation works would be in the region of £12,000 to £15,000, and that, if the flat were in good order and all structural renovations had been carried out, a sale figure would be approximately £35,000. However, taking into consideration the works, he suggested marketing the property initially at £25,000. He recommended again that it would be prudent to enter the property for auction, and there was an October auction coming up. He suggested a reserve price of £20,000. He sent a sole agency agreement form which he had already signed and he invited the attorney to sign it. That agreement was in normal form for a sole agency agreement. It provided for Arun to be the sole agent for a limited period and stated that no other agent would be instructed in that period to sell the property. It was a term that the property would be marketed at £25,000. It was expressly stated that that did not represent a valuation.
The attorney replied on 12th August, enclosing the agreement which he had signed. He, however, said that the reserve figure for the auction should be not the figure recommended but £2,000 less. The property was marketed by Arun as a flat in need of redecoration and updating. It was also entered for auction. The guide price was fixed at £18,000 to £22,000. The flat in fact was never auctioned because it was sold by private negotiation before then.
Mr Ryan approached two potential purchasers known to him. One was a company, Balmoral Homes. The other was a private buyer. Each offered £20,000. Mr Pomeroy, the private buyer, first offered two slightly lower figures before coming up with the offer of £20,000. Balmoral Homes won the contract race. It purchased the property for £20,000. The attorney was very pleased that the sale went through quickly. A little later the property was sold by Balmoral Homes to Mr Pomeroy for £24,500.
The attorney had revealed his opinion and thinking at about this time. He did that in a letter to the solicitors for Mrs Walder of 16th September 1994. In it he explained why Arun had been appointed in place of Connell. He said:
"My mother is very anxious to dispose of the flat, particularly in view of the deteriorating structure and the possibility that the owner of the first floor flat may seek to enforce the covenant whereby my mother is under obligation to adequately support the first floor flat. Apparently cracks are appearing in his bay window which is situated over the area of the ground floor flat where settlement is believed to be taking place."
He referred to Mr Ryan's advice that the property should be put up for auction and that the reserve price be £20,000, but he said that he thought it would be more sensible, in view of certain comments which he was about to make, that the reserve price should be £18,000. He continued:
"As I believe you know I have been involved in housing development most of my working life and following a close examination of the flat I have come to the conclusion that the remedial and restoration work involved to...
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