Matila Ltd v Lisheen Properties Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 16 July 2010 |
| Neutral Citation | [2010] EWHC 1832 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim I 9LV03204 |
| Date | 16 July 2010 |
[2010] EWHC 1832 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester, M60 9DJ
Before His Honour Judge Stephen Davies, Sitting as a Judge of the High Court Pursuant to S.9 of the Senior Courts Act 1981
Claim I 9LV03204
Richard Oughton (instructed by Bellis, Kennan, Gribble & Co, Solicitors, Southport) for the Claimants
Charles Machin (instructed by Birchall Blackburn Solicitors, Manchester) for the Defendants
Hearing dates: 5,6,7,10,11 May 2010.
Closing written submissions 21, 28 May, 3 June 2010.
APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A paragraph 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.
His Honour Judge Stephen Davies:
Introduction
1. In these two actions, ordered to be tried together by His Honour Judge Hodge QC on 31/7/09, the Claimants seek specific performance of a number of contracts for the grant of leasehold interests over the individual residential apartments and commercial units in a development known as The Edge, 7 Hoghton Street, Southport, Merseyside.
2. The first action (9LV03204) concerns 25 separate contracts, one each in relation to each of the 25 residential apartments at The Edge (‘the residential apartments contracts’). The Claimant in that action is the vendor, Matila Limited (‘Matila’), a company of which Mr Phil Collins, a property developer from Southport, is a shareholder and director. The 1 st Defendant to that action is the purchaser Lisheen Properties Limited (‘Lisheen’), a company owned and controlled by the 2 nd and 3 rd Defendants, two brothers, who are sued personally in their capacity as guarantors. Paul Clarke is a restaurateur from Magherafelt, County Derry, and Brendan Clarke is the owner of a plastering business from Ballymena, County Antrim. Brendan Clarke is married to Rosaleen Clarke, who is the office manager of the plastering business. Eugene Clarke, a quantity surveyor from Portstewart, County Derry, is the nephew of the Clarke brothers. All of the individuals mentioned above gave evidence at trial.
3. The second action (9LV03959) concerns 3 separate contracts, one each in relation to each of the 3 commercial units at the Edge (the ‘commercial units contracts’). The original sole Claimant was the vendor Ascot Apartments Limited (‘Ascot’). Ascot is a company owned and controlled by certain other Southport property developers with whom Phil Collins had previous dealings. Matila had entered into the contracts with Ascot relating to the commercial units in similar terms to those of the residential apartments contracts. In turn Ascot had entered into an agreement with Lisheen (‘the Assignment’) under which Ascot had agreed to assign the benefit of the commercial units contracts to Lisheen. Paul Clarke and Brendan Clarke were guarantors to that agreement as well. Ascot, represented separately from Matila, brought proceedings against Lisheen as principal and the Clarke brothers as guarantors, seeking specific performance of the Assignment. More recently, by an assignment made on 1/4/10 (‘the April 2010 Assignment’) Ascot assigned its interest in the relevant contracts to Readbank Limited (‘Readbank’), a company in which Phil Collins is also a director and shareholder, which was then added as 2 nd Claimant and which took over conduct of the second action.
The Issues
4. A number of issues arise for determination in this case, some of which raise questions which are both interesting and complex, factually and/or legally. I can summarise the issues as follows:
(1) Whether Matila served valid completion notices on Lisheen under the residential apartments contracts. This involves considering whether the residential apartments were completed for occupation so as to entitle Matila to serve completion notices, and whether the wording of the letters said to be completion notices were apt to achieve their intended effect.
(2) Whether Matila served valid completion notices on Ascot under the commercial units contracts. This involves considering whether the commercial units were completed in accordance with the agreed specification.
(3) Whether the notices to complete served by Matila on Lisheen and by Matila on Ascot operated, when not complied with, as an effective rescission of the residential apartments contracts and the commercial units contracts respectively so as to prevent Matila from proceeding with an action for specific performance.
(4) Whether the subsequent assignment by Ascot of its rights to Readbank (a) was champertous, or (b) had the effect of releasing Lisheen from any liability under the Assignment.
(5) Whether the Claimants have established their claimed entitlement against Lisheen to specific performance and, if so, whether nonetheless specific performance should be refused in the discretion of the court.
(6) Whether the Defendants have established any of their Counterclaims and, if so, which and in what amount.
(7) Whether the Claimants have established their claims against Brendan Clarke and Paul Clarke as guarantors and, if so, which claims.
5. As well as hearing evidence from the 5 individuals mentioned above, I also heard evidence at trial from 2 expert building surveyors. The first was Mr Moran, who was instructed by the parties as a single joint expert, pursuant to the order of Judge Hodge QC on 31/7/09, to consider the alleged defects in the Edge as alleged by the Defendants in the Scott Schedule ordered to be served by them. The second was Mr McLachlan, who was instructed solely by the Defendants. Exceptionally, I granted permission to the Defendants to rely on Mr McLachlan as an expert witness at the Pre-Trial Review on the basis that: (i) he had already inspected the property during the litigation and prepared a schedule for use by the Defendants in the litigation; (ii) Mr Moran's conclusions completely supported Matila's case, and without expert evidence of their own the Defendants had no real prospect of challenging his conclusions; (iii) in his draft report Mr McLachlan had made it clear that he genuinely disagreed with many of the opinions expressed by Mr Moran; (iv) the timetable to trial permitted sufficient time for Mr McLachlan to revisit the property, produce a final report and hold discussions with Mr Moran before the time came for them to give evidence; (v) to refuse the Defendants permission to rely on their own expert evidence in those circumstances might otherwise leave them with a real sense of injustice, especially given the significance to them of this litigation.
6. So far as the witnesses of fact is concerned, my overall impression of them was that they were all honest witnesses doing their best to give their genuine recollection of events. However, perhaps inevitably, the evidence of those directly involved was to some extent coloured by their interests in the case, together with the time lapse between the events in question and this trial. Where there is a conflict between witnesses which it is necessary to resolve I do so having regard to my assessment of the reliability of their evidence on the particular issue, taking into account the other evidence available to me, and particularly to evidence contained in reliable contemporaneous documents, and taking into account my assessment of the inherent probabilities. For reasons which I give at the relevant stage in this judgment I was less impressed by Eugene Clarke's evidence, and place much less weight on it where it conflicts with that of Phil Collins, with whom I was favourably impressed as a witness, save where strongly supported by other evidence which I regard as reliable.
7. So far as the expert witnesses are concerned, they were both obviously expert in their professed field of building surveying, and both were familiar with the particular field of fire safety with which their evidence was primarily concerned. They both appeared to have a reasonable familiarity with and knowledge of the Building Regulations and Approved Document B (Fire Safety), and they also both appeared to have experience of the practical application of fire safety issues. Mr Moran came across as a confident and assured witness. By contrast Mr McLachlan came across as less confident and assured. Whilst that is not of itself important, he also – in my judgment – tended to be overly critical of the design and implementation of the fire safety measures at The Edge, and to place insufficient weight upon the expertise of those involved in that process. There were also occasions in his evidence when it appeared to me that his knowledge of the Building Regulations and the Approved Document B was not as detailed as it might have been. In general, where there was a dispute between them I was more inclined to accept Mr Moran's views than those of Mr McLachlan. However this is not a case where one expert's opinions on all issues in dispute between them are clearly to be preferred to those of the other, so that again I will need to resolve the individual disputes between them having regard to all of the relevant evidence relating to that particular issue.
8. I express my appreciation for the preparation of the trial bundles by Matila's solicitors and for the able conduct of the case by both counsel. In particular Mr Oughton produced a clear and detailed written chronology and opening, both of which helped me greatly in guiding me through the history of the project and the issues for determination. Both...
To continue reading
Request your trial
-
Liberty Mercian Ltd v Cuddy Civil Engineering Ltd and Another
...of His Honour Judge Stephen Davies, sitting as a Judge of the High Court, in ( Matila Limited v Lisheen Properties Limited and others unreported 23 June 2010) where in considering a claim for specific performance of leases of apartments and commercial units, the defendant had submitted that......
-
Williams v Blaize
...of 23rd May, 2007, supra, were minor and did not justify a refusal to complete. See Matila Ltd. v. Lisheen Properties Ltd. & Ors [2010] E.W.H.C. 1832 (Ch) and in particular the-observations of Stephen Davies, J. at paragraph 246. 95 The court agrees with attorney for the defendant in this r......
-
Contract administration
...Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 174 at [89], per Finkelstein J; Matila Ltd v Lisheen Properties Ltd [2010] EWHC 1832 (Ch) at [80], per HHJ Stephen Davies; Kell & Rigby Holdings Pty Limited v Lindsay Bennelong Developments Pty Ltd [2010] NSWSC 777 at [56]–[58]......
-
Statutory regulation of work
...section 7(1). See also Rickards v Kerrier District Council (1987) 151 JP 625 [QBD, Schiemann J]; Matila Ltd v Lisheen Properties Ltd [2010] EWHC 1832 (Ch) at [177]–[191], per HHJ Stephen Davies; Kingspan Group Plc v Rockwool Ltd [2011] EWHC 250 (Ch) at [18], per Kitchin J; Lowe v W Machell ......
-
Table of cases
...Turner & Sons Ltd (1986) 23 Con LR 16 I.3.38, I.3.191, II.13.136, II.13.149, II.13.174, III.25.40 Matila Ltd v Lisheen Properties Ltd [2010] EWHC 1832 (Ch) I.5.59, III.18.17, III.19.06 Matra Communications SAS v Home Oice [1999] 1 WLR 1646 I.4.14, I.4.75 Matrix Projects (Qld) Pty Ltd v Lusc......
-
Specific Performance: Discretionary Defences and Considerations that Affect Discretion
...on appeal 2021 ONCA 880. 147 Van v Qureshi , 2013 ONSC 3179, af’d on appeal 2014 ONCA 243. 148 Matila Ltd v Lisheen Properties Ltd , [2010] EWHC 1832 (Ch). Also raised is the issue of whether problems concerning inancing in either a rising or a falling market constitute “hardship” or “impos......