RTA (Business Consultants) Ltd v Peter Bracewell
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Richard Seymour |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 630 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X03208 |
[2015] EWHC 630 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand. London. WC2A 2LL
His Honour Judge Richard Seymour Q.C.
(Sitting as a Judge of the High Court)
Case No: HQ13X03208
Mark Spackman (instructed by JCP Solicitors) for the claimant
William Hibbert (instructed by Smithfield Partners Ltd) for the defendant
Hearing dates: 24,25 and 26 February 2015
His Honour Judge Richard Seymour Q.C.:
Introduction
The claimant in this action, RTA (Business Consultants) Ltd. (" RTA"), carries on business as business transfer agents: that is to say, it seeks on behalf of vendors of businesses purchasers for such businesses.
Mr. Peter Bracewell is the owner of the property known as and situate at Drymen Pottery, 9–11 Main Street, Drymen, Glasgow, Stirlingshire ("the Property"). In the Property the business ("the Business") of a cafe/restaurant and public house, with a small gift shop, has been carried on for many years. Mr. Bracewell him self started to carry on the business in about 1990.
At the beginning of 2010 Mr. Bracewell was thinking of selling the Property and the Business. He made contact with RTA by telephone, it seems, on 28 January 2010. At least in a printout of an electronic document entitled "Business Details" produced by RTA the date of a telephone call on 28 January 2010 was recorded, with the note, "Spoke to V[endor] and in current climate if val[uation] was to expectations, he would sell". As a result of the call an appointment was made for a representative of RTA, Mr. Philip Manners, to call at the Property. The case for RTA in this action was that in fact Mr. Manners visited Mr. Bracewell twice, first on 1 February 2010, and again on 22 February 2010. Mr. Bracewell asserted that in fact there was only one visit by Mr. Manners, on 22 February 2010. The case for RTA as to the number and date of the meetings was supported, and the assertion of Mr. Bracewell rendered less likely, by an entry on the "Business Details" document with this comment:-
"PM [Mr. Manners] 1/2/10: Vendor is considering selling the cafe and pub. Has meeting with bank manager this afternoon as they may foreclose. PM to CB [which Mr. Manners explained in his cross-examination at the trial meant " call back"] Thu 3/2."
The "Business Details" document itself noted an appointment for Mr. Manners to meet Mr. Bracewell on 22 February 2010 at 7.30 p.m. In addition it recorded, as "Price Wanted" "WANT OUR OPINION", and, as "Reason for Sale" "CONSIDERING OPTIONS". RTA maintained an electronic diary for Mr. Manners. That electronic diary, the relevant sheets of which were printed out and adduced in evidence at the trial, recorded Mr. Manners visiting Mr. Bracewell at 10.00 a.m. on 1 February 2010 and again at 7.30 p.m. on 22 February 2010. I shall explain later in this judgment why it might matter whether there was one meeting or two between Mr. Manners and Mr. Bracewell.
What was not in dispute, however, was that on 22 February 2010 Mr. Maimers completed in manuscript an RTA document which recorded details of the Property and the Business, including a "SELLING PRICE" for the Property and the Business of "OFFERS OVER £940,000 + SA V [stock at valuation]", and that on the same date Mr. Bracewell entered into a written agreement ("the Agreement") with RTA. The Agreement included the following provisions:-
"2. I/We hereby appoint R.T.A. (BUSINESS CONSULTANTS) LTD. agents for the sale of the Property and/or Business and give you the sole selling rights for an irrevocable TWELVE MONTH period from this date subject to my/our option under Clauses 10 and 11 (overleaf). I/we agree that these sole selling rights shall remain in force after that date until terminated by me/us or alternatively by your Company. Termination, by either of us, must be delivered in writing by registered or recorded delivery post and provide 28 days advance notice.
3. I/We agree to pay you a commission of £40,000 plus VAT when a sale or one of the events hereinafter mentioned takes place. I/We understand that I/we will be liable to pay your agreed remuneration in addition to any other costs or charges agreed in each of the following circumstances.
a) If unconditional contracts for the sale of the Business and/or the Property are concluded or exchanged during the period which you have Sole Selling Rights even if the Purchaser was not found by you but by another Agent or by any other person including me/us.
b) If unconditional contracts for the sale of the Business and/or the Property are concluded or exchanged after the termination of the period in which you have Sole Selling Rights but to a Purchaser who was introduced to me/us during that period or with whom we had negotiations about the Business and/or Property during that period.
c) …
4. I/We authorise you to accept any [ "offers over" written in manuscript above what follows] offer for the said Property and/or Business on my/our behalf in the sum of £940,000 + SAV or such lower figure as I/we instruct you to accept and I/we agree that there is no necessity for you to inform me/us in writing or otherwise of any offers received below the sum of £—— unless you as Agents believe that such action would be in my/our interest.
5. Upon signing this agreement I/we agree to pay to you a registration fee of £9,000 plus VAT. I/we am/are fully aware that these monies are non-refundable and are totally independent from any commission charges payable.
…
8. IT IS AGREED THE BALANCE OF THE REGISTRATION FEE (£8,000 + VAT) WILL BE PAID IN 8 INSTALMENTS OF £1,000 + VAT BY 22/3/10, 22/4/10, 22/5/10, 22/6/10, 22/7/10, 22/8/10, 22/9/10, 22/10/10.
9. For the purpose of this Agreement I/we accept that if I/we grant a lease of the property then I/we will be deemed to have sold the properly and the commission thereof agreed and stated overleaf will be due and payable. I/We further accept that in ascertaining your entitlement to commission there will be disregard for the fact that I/we might make to any prospective purchaser a private loan of monies and/or that a purchaser might have been known to me/us and negotiated with me/us before the date of this agreement.
10. Notwithstanding the foregoing provisions I/we agree that I/we shall have an option to revoke this agreement at any time within the initial 12 months Agency period and that if I/we shall exercise this option (and I/We agree that I/we will be deemed to have exercised the said option if I/we purport to cancel the said agreement within the said Agency period or if I/we prevent you from selling the said property and/or business) I/we will pay you in return for any work you have carried out on my/our behalf and/or in compensation for your loss of opportunity to earn your commission that I/we would have been obliged to pay you if the said Property and/or Business had been sold and the said commission above mentioned had become payable. I/We understand that I/we will not be entitled to exercise this option at a time when a person/s is expressing an interest or negotiating for the purchase even if such a purchaser is not in an immediate position to sign a contract.
11. If I/we cancel this agreement when a person/s is expressing an interest in the purchase of the said Property and/or Business or if at such time I/we prevent you from selling the Property and/or Business then I/we agree that the said commission shall be payable even if that prospective purchaser is not in an immediate position to purchase merely by virtue of the fact that any Finance arrangements, including the sale of other Property had not been finalised at the date of such cancellation."
. Between the date of the Agreement and 8 May 2010 no one seems to have expressed any interest, beyond requesting details of the Property and the Business, in purchasing the Property and the Business. In a letter dated 8 May 2010 to RTA Mr. Bracewell wrote
"I telephoned you last week to discuss, terminating our attempts to sell the business until the market recovers as your estimated price seems to be unachievable at present.
I am very upset to report that nobody has returned my telephone call, I look forward to hearing from you very soon and ask that you undertake no further sales expenses until you have spoken to me."
. What seems to have prompted the writing of the letter was that Mr. Bracewell was already thinking not of selling the Property and the Business, but of letting them to a lady called Carly Bannerman, who was a friend, on a somewhat informal basis, but involving payment of a rent of £40,000 per annum. By the date of the letter Mr. Bracewell had only paid three of the monthly instalments of £1,000 plus Value Added Tax for which clause 8 of the Agreement provided. He has never paid the outstanding balance of £6,000 plus Value Added Tax.
. Mr. Bracewell's letter dated 8 May 2010 seems not to have been received by RTA. Mr. Bracewell sent a copy of it to RTA under copy of a letter dated 10 June 2010. In response to the latter letter Mr. Paul O'Reilly, chief executive of RTA, wrote a letter dated 21 June 2010 in which he pointed out that RTA could only accept an early termination if Mr. Bracewell exercised the option for which the Agreement provided, and that in any event Mr. Bracewell owed the balance unpaid of the registration fee, plus Value Added Tax.
. So far as the documents copied and adduced in evidence went, there was then a gap in correspondence, which ended with a letter dated 10 September 2010 which Mr. Bracewell wrote to RTA:-
"Surprised and disappointed by your last letter, the business has not been sold or leased."
. Although the letter to which that was a reply was not adduced in evidence, plainly it was contended on behalf of RTA in the missing letter that...
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