John D Wood (Residential and Agricultural) Ltd v Craze
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE SWIFT DBE |
| Judgment Date | 30 November 2007 |
| Neutral Citation | [2007] EWHC 2658 (QB) |
| Court | Queen's Bench Division |
| Date | 30 November 2007 |
| Docket Number | Case No: QB/2007/ PTA/0447 |
[2007] EWHC 2658 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
The Hon. Mrs Justice Swift DBE
Case No: QB/2007/ PTA/0447
Mr Panton (instructed by Stockler Brunton, Solicitors) for the Claimant
Mr Rolfe (instructed by Richard Pearlman and Co., Solicitors) for the Defendant
Hearing dates: 18 October 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon Mrs Justice Swift DBE:
This is an appeal from a decision of Master Foster, made at an oral hearing which took place on 3 July 2007. That hearing was of an application by the Defendant for summary dismissal of the Claimant's claim or to strike out the claim. The Master dismissed the Defendant's application with costs and refused permission to appeal. Leave to appeal was subsequently given by the single Judge.
The factual background
The Claimant is a firm of estate agents. The claim is for the payment of commission for the attempted sale of the Defendant's flat in Bolton Gardens, SW5. The Claimant contends that the terms of the agreement between the parties were those set out in its standard Fees and Terms of Business ('standard terms”). The Defendant denies this, contending that the terms of the agreement were agreed orally between the parties and are evidenced in an email and letter written by the Claimant to him. It is not in dispute that the parties agreed that commission would be paid at the rate of 1.75% of the selling price plus VAT. The Claimant's standard terms provided that the Defendant would be liable to pay commission if at any time unconditional contracts for sale were exchanged with a purchaser introduced by the Claimant. The Defendant contends that the oral agreement between the parties specified that commission became payable on completion of the contract of sale.
The events that led to the Claimant being instructed in the sale of the Defendant's flat are fully set out in the witness statements of Ms Gemma Davies and Mr Tim Le Blanc-Smith of the Claimant. The Defendant has filed no witness evidence. Briefly summarised, the Claimant, which had had some previous dealings with the Defendant, was contacted by the Defendant who expressed interest in a property the Claimant was selling. He indicated that he was trying to sell his own flat through other agents. He offered to instruct the Claimant if it could secure an offer higher than that which he had already received. The Claimant firm had on its books a potential purchaser, Mr Christopher Budden. One of its staff contacted him and he came to view the flat. He agreed to buy the flat at a price (£1,505,000) that the Defendant was prepared to accept. These events occurred between mid-July and early August 2006.
On 20 July 2006, the Defendant completed a Seller's Property Information Form in which he stated, inter alia, that he knew of no disputes or anything which might lead to a dispute about the flat or any neighbouring property and had had no complaints about anything he had done or not done as owner. In a Seller's Leasehold Property Information Form, also completed on 20 July, the Defendant repeated that he had not received any complaints from any other occupier of the building about anything he had or had not done. He added:
“… but had complaint in 2001 from a tenant, but it was resolved”.
Both documents were sent to Mr Budden's solicitors.
A query was raised by those solicitors about the 2001 complaint mentioned in the second document. On 26 July, after obtaining the Defendant's instructions, the Defendant's solicitors answered that query on his behalf:
“As stated in replies it [i.e. the complaint] was with regard to noise nuisance. The tenant below our client complained and an amicable agreement was reached in approximately May 2002 when our client purchased high quality underlay and insulating foam and huge rugs. The tenant inspected and there have been no complaints or objections received since”
The Claimant contends that this assertion was untrue and that, in fact, there was an ongoing and unresolved dispute about noise levels emanating from the flat, allegedly arising due to inadequate sound-proofing. There is correspondence covering the period from November 2003 to February 2005 which suggests that this is the case. However, this is not accepted by the Defendant who denies that he made any representations that he knew to be false.
On 6 September 2006, written contracts were exchanged and a 10% deposit was paid. Completion was due to take place on 21 September.
On 12 September 2006, in replies to requisitions, the Defendant stated that he confirmed there were no disputes or complaints affecting the flat. That document was sent to Mr Budden's solicitors.
By 15 September, Mr Budden had been made aware of the history of problems relating to noise. He elected to rescind the contract on the ground of the Defendant's misrepresentations and the sale did not proceed to completion. Nevertheless, relying on its standard terms, the Claimant presented an invoice for its commission in the sum of £30,946.56 to the Defendant. The Defendant refused to pay.
These proceedings
On 31 January 2007, the Claimant commenced proceedings against the Defendant. The Claimant put its case on four different bases (I shall refer to these as its 'grounds of claim'):
i) in debt, on the basis that the event on which the payment of commission was dependent (namely exchange of unconditional contracts) had occurred, with the result that the commission became payable despite the fact that completion of the sale did not take place;
ii) on the basis that, the Claimant having found a purchaser for the flat, the sale had fallen through as a result of the Defendant's default;
iii) in damages, for breach of terms which the Claimant contended should be implied into the agreement between the Defendant and itself;
iv) by way of compensation for services rendered, on a quantum meruit basis.
A Defence was filed on 23 April 2007, denying liability. On 25 May 2007, the Defendant made an application for summary judgment pursuant to CPR 24.2 and, alternatively, pursuant to CPR 3.4(2)(a), for an order striking out the Particulars of Claim.
The hearing before the Master
For the purposes of the hearing before the Master (and also before me), the Defendant conceded that:
a) the agreement between the Claimant and the Defendant was governed by the Claimant's standard terms; and
b) he had made fraudulent (rather than an innocent or negligent) misrepresentations in the pre-contractual documents (the Property Information Form and the Leasehold Property Information Form) and in a post-contractual document (the replies to requisitions).
Both these matters would be in issue were the case to proceed to a full hearing. Thus, the hearing proceeded on the factual basis most favourable to the Claimant.
At the hearing, the Defendant argued that, as a matter of law and construction of the agency agreement, the Claimant's grounds of claim should be summarily dismissed or struck out.
It seems that, for some time, the hearing before the Master proceeded at cross purposes. The Master and Counsel for the Claimant, Mr Panton, were proceeding on the basis that the Master was being asked to determine the application by reference to the test set out at CPR 24.2(a) (1) and (b), namely that the Defendant's application would succeed only if the Master was satisfied that the Claimant had no reasonable prospect of succeeding on the claim and that there was no other compelling reason why the case should be disposed of at a trial. Their understanding meant that, unless the Claimant was unable to overcome that relatively low hurdle in relation to any of its grounds of claim, the claim would proceed to trial on all issues. By contrast, Counsel for the Defendant, Mr Rolfe, believed that, since the points in dispute were matters of law and construction, the Master would be making a final determination of the issues.
It is not clear to me how the misunderstanding arose. However, once it was discovered, Mr Rolfe sought to persuade the Master to determine the issue finally. He referred him to the recent case of ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725. In that case, the Defendant had issued an application for summary judgment under CPR Part 24. One of the arguments raised by the Defendant on the hearing of the application concerned a short point of construction. Accordingly, the Judge invited the parties to agree that he should decide the point as a preliminary issue. The parties were unwilling so the Judge proceeded instead on the basis that he should apply the Part 24 test. He dismissed the Defendant's application. The Defendant appealed. Giving the judgment of the Court of Appeal, Moore-Bick, LJ, said:
“In my view the Judge should have followed his original instinct. It is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the Court is satisfied that it has before it all the evidence necessary for the proper determination of the question and the parties have had adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: If the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner this is determined, the better.”
He went on to reject the Claimant's argument that...
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Dian Ann-Marie Patterson v Don Providence
...are set out in many cases on estate agency agreements. Thus in John D. Wood & Co (Residential and Agricultural Ltd) v Edward Craze [2007] EWHC 2658 QB, Justice Swift DBE citing Jenkins LJ in Midgely Estates Ltd v Hands [1952] 2 QB 432l stated: “The purpose of engaging the services of an est......
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Coburn T. Norfleet v Prather McNeal-Hutchison
...are set out in many cases on estate agency agreements. Thus, in John D. Wood & Co (Residential and Agricultural Ltd) v Edward Craze [2007] EWHC 2658 QB, Justice Swift DBE citing Jenkins LJ in Midgely Estates Ltd v Hands [1952] 2 QB 432l stated: “The purpose of engaging the services of an ......
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Dian Ann-Marie Patterson v Don Providence
...are set out in many cases on estate agency agreements. Thus in John D. Wood & Co (Residential and Agricultural Ltd) v Edward Craze [2007] EWHC 2658 QB, Justice Swift DBE citing Jenkins LJ in Midgely Estates Ltd v Hands [1952] 2 QB 432l stated: “The purpose of engaging the services of an est......
-
Coburn T. Norfleet v Prather Mcneal-Hutchison
...are set out in many cases on estate agency agreements. Thus, in John D. Wood & Co (Residential and Agricultural Ltd) v Edward Craze [2007] EWHC 2658 QB, Justice Swift DBE citing Jenkins LJ in Midgely Estates Ltd v Hands [1952] 2 QB 432l stated: “The purpose of engaging the services of an ......