Shill Properties Ltd v Anne Bunch
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 05 August 2021 |
| Neutral Citation | [2021] EWHC 2142 (Ch) |
| Docket Number | Case No: PT-2019-000205 |
| Court | Chancery Division |
[2021] EWHC 2142 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Master Clark
Case No: PT-2019-000205
Samuel Hodge (instructed by Clarke Mairs LLP) for the Claimant
Nigel Woodhouse (instructed by Simons Rodkins Solicitors LLP) for the Defendant
Hearing date: 8 July 2021
Approved Judgment
I direct that this approved judgment, sent to the parties by email on 7 July 2021, shall deemed to be handed down on that date, and copies of this version as handed down may be treated as authentic.
This is my judgment on the claimant's application dated 15 October 2019 seeking summary judgment on its claim.
Parties and the claim
The claimant, Shill Properties Limited, is an investment company. The defendant, Anne Bunch (“Mrs Bunch”), is the owner of 7 Gunstor Road, London N16 8HF (“the Property”).
On 7 December 2018, the parties entered into a contract of sale of the Property (“the Contract”) by exchanging contracts pursuant to Law Society formula B (telephone exchange).
The key terms of the Contract were:
(1) the purchase price was £840,000;
(2) the deposit was 5% of the price, £42,000;
(3) the balance was payable on completion;
(4) the completion date was 8 February 2019.
The Contract included the Standard Conditions of Sale (5 th edition) (“the Standard Conditions”). These included relevantly for present purposes at clause 6 of the Special Conditions (“Clause 6”):
“ Representations
Neither party can rely on any representations made by the other, unless made in writing by the other or his conveyancer but this does not exclude liability for fraud or recklessness.”
By her solicitors' letter dated 7 February 2019, Mrs Bunch indicated that she was not willing to complete the Contract, alleging that it had been procured by undue influence and/or duress.
The claim was commenced on 12 March 2019. It seeks specific performance of the Contract and, by an amendment which is not opposed, various consequential losses.
The defence (dated 28 June 2019) alleged that Mrs Bunch lacked capacity to enter into it, alternatively did so under duress. These defences have now been wholly abandoned. Mrs Bunch seeks to rely on a new defence (set out in a draft amended defence) that she was induced to enter into the Contact by a misrepresentation that the claimant was a cash buyer, although no formal application to amend has been made.
The draft amended defence pleads that the representation that the claimant was a “cash buyer” was a representation that the claimant intended or expected to purchase the Property without the assistance of a loan or mortgage, and that that representation continued up to exchange of contracts. The representation was, it is pleaded, false, because the claimant intended to buy the Property with the assistance of finance.
Evidence in the application
Although the application notice refers to an attached witness statement, there is none on the file, or before me. The claimant's evidence comprises:
(1) the first witness statement dated 17 April 2020 of Bernard Margulies — he is not an officer or employee of the claimant, but is the son of its director, Charles Mark Margulies; he undertook all of the negotiations with respect to the claimant's purchase of the Property – I shall refer to him as Mr Margulies;
(2) the witness statement dated 17 April 2020 of Charles Mark Margulies;
(3) the second witness statement dated 5 July 2021 of Bernard Margulies.
The defendant's evidence comprises:
(1) a psychiatric report dated 17 February 2020 by Dr Neil Brener addressing Mrs Bunch's capacity
(i) to enter into the Contract in December 2018
(ii) to conduct litigation as at 10 February 2020.
(2) the witness statement dated 23 June 2021 of Nicola Henshall, who together with her partner, Felix Hobson, were competing prospective buyers for the Property;
(3) the witness statement dated 1 July 2021 of Simon Aaron, Mrs Bunch's solicitor.
The evidence on behalf of Mrs Bunch was served on the claimant on 1 July 2021. This was within 7 days of the hearing in accordance with CPR 24.5, although at a relatively late stage in the chronology of the application, the hearing of which was adjourned several times due to Covid restrictions, and Mrs Bunch being unable to attend remotely.
Factual background
The circumstances in which the Contract was entered into are not entirely clear from the evidence, and are rather unusual.
Mrs Bunch was born on 11 December 1931 and is now 89. At the time of the material events, she was 86, turning 87 a few days after contracts were exchanged. She lives on her own. Dr Brener concludes that in December 2018, she probably had capacity to understand the information she was given about the sale of the Property, but that she was vulnerable to manipulation.
In mid 2018, 2 firms of estate agents were instructed (it is unclear whether by Mrs Bunch herself or someone on her behalf) to market the Property for sale: Fine & Country Limited and Alexander Knight. The claimant was introduced to the Property by Fine & Country. Mr Margulies visited the Property on 13 August 2018, and was the main point of contact between the claimant and Fine & Country, and the claimant and its conveyancing solicitors, Taylor Rose TTKW Limited (“Taylor Rose”).
On 14 August 2018, Adam Tahir a director of Fine & Country, sent an email to Ansuya Tailor, a conveyancing executive at Cavendish Legal Group (a firm of solicitors), in the following terms:
“So, We may agree a sale for the following: 7 Gunstor Road N16 8HF. Owner is called Ann Bunch and is VERY old – her house is in a state of disrepair and she needs to move out as she can hardly get up the stairs. We have a cash Buyer in place at a level of £810,000.
Below is the vendors friend, who she speaks to when she needs advice.
Jacqueline Pearce
[mobile phone number and email address]
The offer hasn't been accepted as of yet but Jacqueline is going to speak to Ann and try to get the offer accepted.
Apparently Ann has not had the best experience with sols, so I have told her you are the best of the best and the sweetest thing out there
Jacqueline is going to call you tomorrow AM to discuss steps etc with you and if all good they will instruct you to go ahead.”
(emphasis added)
It would appear that Mrs Bunch accepted the offer of £810,000, although there is no evidence as to how this occurred. On 15 August 2018, Mr Tahir sent a memorandum of sale at the price of £810,000 to the claimant and Taylor Rose. On 29 August 2018, Ms Tailor sent a contract pack to Taylor Rose.
In the meantime, on 11 September 2018, Ms Henshall and Mr Hobson, who had been introduced by Alexander Knight, offered £860,000 for the property.
On 18 September 2018, Taylor Rose (Mehreen Iqbal) raised a number of enquiries on the Contract and the Property. Ms Tailor responded to those enquiries the following day.
On 21 September 2018, Alexander Knight wrote to Ms Henshall and Mrs Bunch confirming that Mrs Bunch had accepted their offer of £860,000; and on 8 October 2018, Ms Henshall's solicitors confirmed that she and Mr Hobson had received their mortgage offer.
On 10 October 2018, Ms Tailor emailed Ms Iqbal to tell her that Mrs Bunch was no longer proceeding with the sale to the claimant. Mr Margulies' response was to email the partner at Taylor Rose, Sean McCarthy “Please take over here”. There is no evidence as to what Mr Margulies expected Mr McCarthy to do, nor as to what Mr McCarthy in fact did.
He must, however, have taken some steps, because on 7 November 2018, Ms Iqbal emailed Ms Tailor:
“I write further in this matter as I understand this matter is no[w] proceeding.
Please confirm that you client is happy to proceed with the purchase price of £820,000 with immediate exchange.”
Mr Margulies' witness statement does not contain any explanation of his involvement in the increased offer, how it came about, how it was communicated to Mrs Bunch or how she accepted it. However, on 7 November 2018 Ms Henshall emailed her solicitors, saying:
“I had a call from the seller this morning telling me that two days ago she had been persuaded by another agent to sell the house to a cash buyer and she instructed her solicitor accordingly, but now she has changed her mind. Based on my discussions with her and the estate agent we are dealing with, I think that she is just very muddled and misremembering things that happened before she accepted our offer. However, I would appreciate if you could just confirm with her solicitors that everything is ok and they have not been instructed to prepare contracts for another buyer.”
(emphasis added)
On 8 November 2018, Ms Henshall's solicitors confirmed that they were ready to exchange straightaway.
On 9 November 2018, Cavendish Legal (Nick Pelmont, a partner) emailed Ms Henshall's solicitors in response to their query:
“There is no contracts race at the moment.
We withdrew the contract from the first buyers and your buyers are the only ones currently with a contract. At the moment we are at least 2 weeks away from being in a position to exchange as we are no ready to exchange on Anne's related purchase.”
Ms Henshall's solicitors replied
“Can you expressly confirm that you are not instructed to proceed with any other buyer?”
to which the reply from Mr Pelmont was
“Yes, at present that is the case.”
This would appear to be a straightforward untruth in the light of Ms Iqbal's email of 7 November 2018 to Ms Tailor. There is no explanation in the evidence as to how Mr Pelmont considered himself able to write in these terms. Mrs Bunch's solicitors have attempted to obtain a...
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