Praetor Investments 5 Ltd v Transport House Developments Ltd & Anor [2026] EWHC 1724 (Ch)

[2026] EWHC 1724 (Ch)Case No PT 2025 001092 PT 2025 001106IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10/07/2026
Before
DEPUTY MASTER DEW
Between
Praetor Investments 5 LtdClaimantTransport House Developments LtdDefendantsChhotahal ChhayaDefendant
Simon Lane and Carl Fain (instructed by Burlingtons Group Limited) for ClaimantRobert Strang (instructed by Vymans Solicitors Limited) for DefendantsHearing Hearing dates: 9 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]On 14 October 2025, the First Defendant, with the Second Defendant as a guarantor, executed auction contracts for the purchase from the Claimant of two plots of land: Wildacres View, Sandy Lane (“Wildacres”) and Fairview Corner, Sandy Lane (“Fairview”). Subsequently, on 21 October 2025, having brought forward the date on which completion was to take place, the Claimant served notices to complete. The First Defendant did not complete the contract, and the Claimant has subsequently sold both plots to other purchasers.[2]These claims were originally for specific performance of the contracts. Shortly after issuing the claims, the Claimant sought summary judgment. It has since sold both plots and so applied to amend its application to seek summary judgment of a claim to retain the deposit in respect of Wildacres and a claim to recover damages equal to the difference in price paid by the purchaser of Fairview as opposed to the price the First Defendant agreed to pay.[3]By application notices dated 24 April 2026, the Defendants applied for summary judgment against the Claimant as well as permission to bring a counterclaim for return of the deposits.[4]Both parties therefore contend that the other’s claim has no prospects of success. I have to decide which of them is right or, alternatively which of the claims has a real prospect of success and so should proceed to trial.[5]The unusual feature of the claims is that the Claimant was not the legal owner of the plots but instead had agreed to purchase them from the owner by means of a separate contract known as the ‘Top Contract’. The central issue in the claim (there are others) is whether the terms of the Top Contract meant that the Claimant was not “ready, willing and able” to complete the contracts with the Defendants. I have concluded that it was not so ready, willing and able.

Background

[6]The Claimant placed Wildacres and Fairview in an auction due to take place on 15 October 2025, having prior to that date entered into a contract to purchase those plots.[7]The Second Defendant is the director of the First Defendant. On 9 October 2025, the Second Defendant contacted the auctioneer to express interest in purchasing the plots. Conversations continued and a price of £200,000 was agreed for Fairview and of £700,000 for Wildacres. On 14 October 2025, the day before the auction was due to take place, the Second Defendant executed contracts on behalf of the First Defendant to purchase the plots with himself as a guarantor. He paid the deposit for Fairfield the same day and the deposit for Wildacres the next day.[8]Very shortly after signing the contracts, the Second Defendant indicated that he would not be able to complete. At 07:45 on 15 October, he emailed to ask that Wildacres be put back into the auction, stating that he had been let down by some investors. This seems to have caused the Claimant to bring forward the date for completion. It did so by solicitor’s letters sent by email on 15 October stating the completion date would be 21 October (it had been 11 November), a period of only three clear business days. It then, on 21 October, served notices to complete the contracts.[9]The First Defendant did not complete the contracts.[10]The Wildacres claim was issued on 22 October 2025 (i.e. the day the notices to complete expired and barely a week after the contracts had been signed) and the Fairview claim on 24 October 2025.[11]The Claimant sold Wildacres as separate plots between 9 January 2026 and 19 February 2026.[12]The Claimant sold Fairview on 6 May 2026 for the sum of £81,250, including applicable fees.

The Claims and Applications

[13]The claims are made by Part 8 Claim form and seek specific performance of the auction contracts. A few days after issue, the Claimant issued applications for summary judgment on both claims. Pursuant to CPR 24.4(3)(a) it was entitled to do so at any time after the claim form had been served.[14]The sale of Wildacres in January and February 2026 caused the Claimant to apply to amend its application in respect of that plot, so as to seek summary judgment of a claim for a declaration that the Defendants are in breach of the auction contract, that the auction contract is at an end and that the Claimant is entitled to retain the deposit.[15]The sale of Fairview in May 2026, very shortly before this matter had first been listed, caused the Claimant to apply to amend its application in respect of Fairview so as to add the words “the Claimant applies for permission to amend its specific performance claim to a damages claim as the Land has been sold and apply for summary judgment on the same basis that there was no reason for the Defendant to fail to complete the purchase.”[16]Separately, the Defendants applied, by applications dated 24 April 2026 for(i) summary judgment in respect of the Claimant’s claims and(ii) permission to bring a counterclaim “that the contract upon which the claim is based is void or rescinded and that the Claimant return the deposit paid by the First Defendant, with interest”.[17]I observe that the only pleadings in this claim are the details of claim, and they seek relief (specific performance) which the Claimant no longer wants. Draft amendments were attached to the Claimant’s application to amend the claim in respect of Widlacres. Sensibly, the parties have been pragmatic about this, and it is right to say that what both parties seek is reasonably clear. Nevertheless, it would have caused difficulties if I were prepared to make the orders the Claimant seeks, particularly in respect of Fairview (see paragraph 66 below).[18]It follows that the following applications are before me: i) Applications for summary judgment in respect of the Claimant’s claims for specific performance. ii) Applications to amend the above applications, and to amend the claims,(i) in order to retain the deposit over Wildacres and(ii) to claim damages in respect of Fairview. iii) Applications by the Defendants for summary judgment against the Claimant and to counterclaim for return of the deposits.

The Issues

[19]I asked the parties to provide me with a list of the issues which require to be determined in order to decide the above applications. Two alternative versions were produced, but the differences are largely of emphasis. I have taken from those that the issues I need to decide are as follows: i) Whether the Claimant was ready, willing and able to complete the contracts when it served the Notices to Complete and on the contractual completion date. ii) Whether the Defendants have identified a real prospect of successfully defending the claim on the basis that:a. the Claimant was not ready, willing and able to complete the contracts;b. the Notices to Complete were not valid;c. the contracts, including the overage arrangements, are unenforceable as unconscionable bargains and/or by reason of any unusual or insufficiently disclosed terms; ord. in respect of the quantum of the claim in respect of Fairview Corner, the claim includes a claim for an additional premium which is an unenforceable penalty. iii) Whether the Defendants were in breach of contract by failing to complete, or alternatively whether the Claimant was in repudiatory breach entitling the Defendants to rescind the contracts. iv) What relief follows, including whether the Claimant is entitled to retain the deposits and recover damages in relation to Fairview Corner or whether the Defendants are entitled to repayment of the deposits.[20]It can be seen from the above that no parties seek to argue that the applications to amend should not be granted, so the dispute is (sensibly) focussed on the substance of the arguments.

Summary Judgment

[21]All of the substantive applications are for summary judgment. To succeed on an application for summary judgment the applicant must show that the other party “has no real prospect of succeeding on the claim, defence or issue” and that “there is no compelling reason why the case or issue should be disposed of at trial”, CPR 24.3.[22]The principles applicable to these applications are extremely familiar and summarised at paragraph 24.3.2 of the White Book. I will pick out only two of those as being of particular relevance to this application: i) First, it is not uncommon for an application to give rise to a short point of law or construction which the court is capable of deciding on the evidence before it. In such cases, the court should determine the issue. The parties are in agreement that the first issue described above is one such issue, which is why they both ask the court to decide the issue. ii) Second, in making its decision the court must take into account not only the evidence before it, but also the evidence that can reasonably be expected to be available at trial. That is usually a reference to evidence that may support or undermine another party’s case.[23]Save for the first issue referred to, I consider I must be cautious in deciding to give summary judgment in respect of claims which have not even been pleaded. So, for example, the Defendant has not provided a pleaded defence of its allegations of unconscionable bargain, and so the Claimant has not defined its case in response to such a claim. There is a risk, in taking a broad view that an unpleaded claim must have no prospect of success, of unfairly overlooking an aspect of that claim. The First Issue: Ready, willing and able to complete Introduction

The First Issue: Ready, willing and able to complete

[24]The auction contract consists of a number of sets of conditions. It begins with “General Conditions of Sale”, which incorporate and amend the Standard Conditions of Sale (5th edition – 2018 Revision) and “Special Conditions of Sale”, which are attached to the auction contract.[25]Clause 6.8.1 of the Standard Conditions of Sale (5th edition – 2018 Revision) provide that “at any time after the time applicable under condition 6.1.2 on completion date, a party who is ready, able and willing to complete may give the other a notice to complete” (my emphasis). Confusingly, the Special Conditions of Sale also incorporate the Standard Commercial Property Conditions (Third Edition – 2018 Revision), paragraph 9.8 of which is in essentially the same terms. On any basis, therefore (and it is common ground) a party who serves a notice to complete must be ready, willing and able to complete the contract. If they are not, they are themselves in repudiatory breach of contract.[26]As referred to above, the Claimant was not, at the time of the contract, the owner of the plots. The Special Conditions of Sale anticipate this and clause 7 states that “the Buyer hereby acknowledges that the Seller is not the registered proprietor of the Property and undertakes to the Seller as follows”. The following sub conditions include clause 7.2: “Not to object to the validity of any Notice to Complete served by the Seller upon the Buyer if the Buyer fails to complete on the basis that the Seller is not the registered proprietor of the title or on the basis that the Top Contract has not completed”.[27]By Special Condition 8.7, the Seller sells the Property free from incumbrances other than “any matters referred to in the Disclosed Documents including the Special Conditions of Sale and Transfer Deed annexed hereto”. The Disclosed Documents include a redacted copy of the Top Contract, from which it can be seen that the Claimant was obliged to its seller to execute a Deed of Overage in the form set out in Appendix A to the Top Contract. Appendix A shows that the Claimant would, in executing that Deed of Overage, covenant “not to make any Disposal of the whole or any part or parts of the Property at any time during the Overage Period without first procuring that the person to whom that disposal is being made has executed a Deed of Covenant”, and would further covenant to enter a restriction of the title preventing a disposition without the consent of the ‘Top’ seller. A Deed of Covenant is defined as “a deed of covenant with the Seller containing covenants in the same terms as those given by the Buyer in this deed with such minor modifications as the Seller may agree”.[28]To summarise, the Claimant was under a contractual obligation, by reason of the Top Contract, not to sell the Plots without its buyer (in this case, the First Defendant) entering into a contract with its seller in substantially the same terms as the Overage Deed annexed to the Top Contract.

The Defendants’ case

[29]The Defendants say that the Claimant was not “ready, willing and able” to complete the auction contracts because, at the date of the Notice to Complete and at the point of completion, it could not sell the plots without procuring that the Defendants had entered into a contract with the ‘Top’ seller, something which it had not done and indeed had never asked the Defendants to do.[30]They point out(i) in none of the documentation is there any draft Deed of Covenant,(ii) no part of the auction contracts obliges the Defendants to enter into a Deed of Covenant and(iii) that these concerns were raised with the Claimant by letter on 20 October 2025 but rebuffed.

The Claimant’s case

[31]I understand the Claimant to respond to these points as follows: i) That the First Defendant is under an obligation to enter into a Deed of Covenant and so cannot rely upon its own failures. It identifies Special Condition 11 as providing that obligation. That clause says:
“The Buyer shall be responsible for all costs in connection with the release of any title restriction and any deed of covenant to be entered into or required to be entered into by virtue of the Top Contract, the top transfer deed or the Title.”
It says that a reasonable person would construe this clause, and the contract more widely, as placing an obligation on the First Defendant to enter into the deed of covenant required by the Top Contract. It points out that only the First Defendant could be responsible for completing the deed of covenant and says that the First Defendant cannot rely upon the non-fulfilment of its own contractual obligation. ii) It relies upon clause 7.2 as preventing the First Defendant from objecting on these grounds. iii) It says that the objection that such Deed of Covenant was not in place when the notice to complete was served, nor would be on the date it gave for completion specified in the notice, is mis-placed in circumstances where such a deed could be entered into at a later date.[32]In support of the last sub-paragraph above, the Claimant’s counsel referred me to section 27 Land Registration Act 2002. That requires that particular dispositions of a registered estate (being most dealings with the legal estate) are required to be completed by registration. A failure to register prevents the disposition operating at law (it may operate as an equitable disposition). I understood him to be saying that there was inevitably a gap between the parties’ own completion of their contract and the necessary registration of that disposition.

Discussion

[33]A party who serves a notice to complete must be ready, willing and able to complete the contract at the time they serve the notice and this is judged at the time the notice is served. However, a party can be ready, willing and able at that date if there are steps they still need to take, provided they can be undertaken by the date specified for completion. If a party serving a notice to complete is not ready, willing and able to complete then they are themselves in repudiatory breach of contract. See Cantt Pak Ltd v Pak Southern China Property Investment Ltd [2018] EWHC 2564, Aero Properties Ltd v Citycrest Properties Ltd [2002] 2 P&CR 21, Quadrangle Development v Jenner [1974] 1 WLR 68 and Oakdown v Bernstein (1985) 49 P&CR 282.[34]Here, both at the date of service of the notice and on the date for completion (which was the next day), the Claimant would have been in breach of its contract with the ‘Top’ seller in conveying title to the First Defendant without the First Defendant having entered into a deed of covenant with that seller.[35]I questioned the parties whether this really meant that the Claimant was not ‘ready, willing and able’ to complete. If the Claimant had sought to complete the Top Contract and then convey the plots to the First Defendant it undoubtedly would have been in breach of contract with the Top Seller. But would it not have nevertheless conveyed good title? It seems to me that whether or not it would have conveyed good title, it could not be said to be ‘ready, willing and able’. In transferring the title to the First Defendant, the Claimant would be in breach of contract with its own seller. A party cannot, it seems to me, say that it is ready, willing and able to do something if, in doing it, it would be in breach of a contractual obligation owed to a third party. Moreover, the breach would expose both the Claimant and the First Defendant to claims by the ‘Top’ seller, which might well be enforceable direct against the First Defendant (I emphasise I am not in a position to decide if that is actually the case).[36]Given that, the next question becomes whether this is not a proper objection by the First Defendant because it had a contractual obligation to enter into a deed of covenant with the ‘Top’ seller. I have to say that the basis for such a contractual obligation is very thin. The documents disclosed to the First Defendant require very considerable examination before it can be ascertained that there is an expectation on it to enter into the deed of covenant. Moreover, none of the documents contains a draft deed of covenant. So the assertion is that the First Defendant must by means of implication have been required to do something which is not at all obvious from the documents themselves.[37]In any event, the clauses relied upon do not support the assertion. The specific clause is Special Condition 11 which, it will be recalled (paragraph 31(i) above), places an obligation on the First Defendant to meet the costs of any such deed of covenant. However, I am not able to construe this provision, either alone or in the context of the overall documents, as requiring the First Defendant to enter into a deed of covenant with the ‘Top’ Seller. Meeting the costs of things that might be required is not the same as being obliged to do those things.[38]Nor does Special Condition 7.2 assist. This clause prevents the First Defendant objecting to completing on the basis that the Claimant is not the registered proprietor or on the basis that the Top Contract is not completed. However, the objection explicitly relies on both those propositions and instead says that the Claimant would be in breach of the ‘Top’ Contract.[39]It is a further objection that the alleged implied clause is an obligation on the First Defendant to agree terms with a third party. Admittedly, the outline of that agreement is plain – a covenant to perform the overage obligations – but nevertheless in the absence of a draft deed already agreed with the ‘Top’ seller the First Defendant can reasonably say that it is faced with an unenforceable obligation to seek agreement with a party which may simply refuse or may provide objectionable terms. That further suggests that no such clause can be implied.[40]The final question is whether it can be said that this does not matter because the deed of covenant could have been completed at some point after the parties’ completion. The argument seemed to be presaged on the basis that there would be a gap between completion and registration during which time such matters could be resolved (thus, the reference to section 27 Land Registration Act 2002). I cannot see how that is any answer at all. It necessarily presupposes that HMLR (or the ‘Top’ Seller) might refuse to register the First Defendant’s title because of the terms of the Top Contract, leading to requisitions which could only be addressed by belatedly completing a deed of covenant. However, that must mean that Claimant was not in a position to complete the contract either when it served the notice or on the date given for completion. It therefore proves what it seeks to disprove: the Claimant was not ready, willing and able to complete at the relevant time.[41]In written and oral arguments, the Claimant said that the Defendants have taken this point only because they were not in a financial position to complete the contract. The evidence strongly suggests that is right. However, I cannot see that this has any relevance. The Claimant was not, as a matter of law, ready willing and able to complete and so the objection is right, regardless of the reasons that give rise to it.

Disposal

[42]That means that the Defendants’ applications for summary judgment must succeed, and the Claimant’s claims (and its applications) must also be dismissed.[43]That also means that the other defences of the Defendants fall away. However, in case a higher court should disagree with the conclusions I express above I shall deal with those defences too.

Unconscionable Bargain

[44]In Boustany v Pigott (1995) 69 P&CR 298 the Privy Council dismissed appeals against the setting aside of a lease entered into by a Miss Pigott (as landlord). In doing so, they applied the decision of Kay J. in Fry v Lane (1888) 40 ChD 312 that a contract may be set aside for unconscionable conduct if it is proven that(i) the Claimant is poor and ignorant,(ii) that the transaction was at a considerable undervalue and (3) that the relevant party had no independent advice. The Privy Council said it was in general agreement with the following submissions:
“(1) It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that 'one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say, in a way which affects his conscience': Multiservice Bookbinding v Marden [1979] Ch 84 at page 110. (2) 'Unconscionable' relates not merely to the terms of the bargain but to the behaviour of the stronger party, which must be characterised by some moral culpability or impropriety: Alec Lobb (Garages) Ltd v Total Oil (Great Britain) Ltd [1983] 1 WLR 87at page 94. (3) Unequal bargaining power or objectively unreasonable terms provide no basis for equitable interference in the absence of unconscientious or extortionate abuse of power where exceptionally, and as a matter of common fairness, 'it was not right that the strong should be allowed to push the weak to the wall': Alec Lobb (Garages) Ltd v Total Oil (Great Britain) Ltd [1985] 1 WLR 173 at page 183. (4) A contract cannot be set aside in equity as 'an unconscionable bargain' against a party innocent of actual or constructive fraud; even if the terms of the contract are 'unfair' in the sense that they are more favourable to one party than the other ('contractual imbalance'), equity will not provide relief unless the beneficiary is guilty of unconscionable conduct: Hart v O'Connor [1985] AC 1000, applied in Nichols v Jessup [1986] NZLR 226. (5) 'In situations of this kind it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely that unconscientious advantage has been taken of his disabling condition or circumstances': per Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 46 ALR 402 at page 413.”
[45]There is very little in the evidence that would support a defence of unconscionable bargain. The Second Defendant’s witness statement discloses some circumstances that suggest he may have been more susceptible to making an unwise decision. The contract itself is also onerous, especially when the full documentation is given careful consideration. However, there is nothing whatsoever to say that the Claimant knew of the Second Defendant’s difficulties, nor that it acted in a way that can be characterised as “moral culpability or impropriety”, or of “unconscionable conduct”. This was a case of two commercial parties entering into a contract. Thus, it is impossible to see that this defence could be made out if the matter were to proceed to trial.[46]I have considered whether it would be better (had I not already decided the claim against the Claimant) to permit the Defendants to plead this claim before deciding whether to give summary judgment. However, in my judgment there is no real prospect of establishing the necessary fault or conduct on behalf of the Claimant and so I would not do this. This defence has no real prospect of succeeding.

Unusually Onerous Terms

[47]In J Spurling Ltd v Bradshaw [1956] 1 WLR 461, Denning LJ said that “some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice [of the clause] could be held to be sufficient”. For a time, it was therefore said that there was a “red hand” doctrine that especially unusual or onerous clauses required specific notice of their existence to be enforceable. In MS Amlin Marine NV v King Trader Ltd [2026] 2 WLR 163 the Court of Appeal named this doctrine, less prosaically, as the “onerous clause doctrine”. They said:
“The onerous clause doctrine provides, therefore, that that where a particularly onerous or unusual term of a contract (an onerous clause) is contained in one party's standard terms, and where the other contracting party does not actually know of that term, it will not bind the other contracting party unless the party seeking to rely upon it shows that the clause in question (whether individually or as part of the standard terms) was fairly and reasonably brought to the other contracting party’s attention.”
They emphasised that the doctrine is unlikely to apply in commercial contracts where the parties are of broadly equal bargaining power and where the challenged clauses are common form or usual terms. They also said that questions of how unusual or onerous the clause is, and the extent to which the clause needs to be drawn to the other party’s attention, are questions of fact and degree.[48]In oral submissions, the Defendants relied upon one term in particular as being especially unusual and onerous. That is the ability of the Claimant to bring forward the date for completion to a date in three working days’ time and then to give notice to complete the next working day. They say that this is onerous because it can place the purchaser in a position to have to complete the contract very shortly after exchange and thus to effectively render completion impossible.[49]In the witness evidence (but not, so far as I recall, in oral arguments) the Defendants complain of other clauses which impose a number of additional charges and costs in the event of late or non-completion. I understand these complaints to be additional to that above, i.e. they say that the contract is unusually onerous in permitting the Claimant to require very early completion and then imposing further costs and charges for not completing.[50]One only needs to see how the conditions were used in this case to see that the ability of the Claimant to require early completion was onerous. The Claimant was able to require the Defendants to complete their purchase not in the expected 28 days but only 1 week after the auction contracts had been signed. Moreover, it seems to have done so in the knowledge that the Defendants would not be able to complete on that date. The conditions therefore give the Claimants very considerable power over their buyer, and it is right to say that failures of the buyers then lead to a number of additional costs and charges.[51]It is also difficult for the buyer to ascertain that the Claimant has this ability without very considered study of the contractual documents. That is the case with much of this auction contract, which imports two sets of standard conditions and an additional set of special conditions. It is especially so with this particular condition because to appreciate it the purchaser must cross refer between the special conditions and the standard conditions.[52]Although not expert evidence, I note that the Defendants’ conveyancing solicitor says that she has “never come across such sharp practice in my many years of conveyancing and, at the very least, if the Claimant wanted to rely upon such terms, it should have expressly drawn them to the First Defendant’s attention”.[53]The Claimant points out that the Defendants were provided with all the documentation in advance of signing it and that the legal pack states explicitly that they must read it. These documents do not, however, point out the Claimant’s ability unilaterally to bring forward the date for completion.[54]The question I am asked is whether the Defendants have a real prospect of successfully establishing that this was an unusually onerous clause. There are clearly some questions that need further consideration. For example, I do not have evidence – at least not in the form of permitted expert evidence – as to whether such conditions are usual or normal, either in conveyancing generally or in respect of auction contracts. However, at this stage I am not prepared to say that the Defendants have no real prospect. In my judgment they do have a real prospect.[55]It follows that I would have permitted this defence to proceed, probably with pleadings and limited further evidence.

Unenforceable Penalty

[56]Clause 25 of the Special Conditions says: “In the event that the Buyer fails to complete on the Completion Date by the time specified in the Special Conditions, the Buyer shall pay a further premium of eight thousand pounds or five and a half percent (5.5%) of the purchase price whichever is greater”.[57]The Defendants say that this is an unenforceable penalty.[58]In Cavendish Square Holding BV v Makdessi [2016] AC 1172 the Supreme Court said that a clause will be an unenforceable penalty if it is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (paragraph 32).[59]In submissions, the Claimant’s counsel argued that the Claimant had a legitimate interest in preventing the buyer from failing to comply with the contract terms and in particular had an interest in the Claimant not losing a sale after the auction had taken place.[60]I am not convinced that the clause has anything to do with the interests suggested. It is imposed on the completion date and is not dependent on whether time is then of the essence. It applies even if the buyer completes within a period specified in the notice to complete. It is part of a series of clauses imposing costs and charges on the purchaser in a number of different ways.[61]Since I am not certain what the legitimate interest being protected is, I am not in a position to judge whether the sum charged is out of proportion to that interest. On the face of it, the charge is a very large one, but it may perhaps be said that the deterrent effect created by it is a legitimate one. I note that in the Cavendish Square Holding case the very large sums charged by parking companies for ‘over-staying’ were said to be legitimate and it is possible to see the analogy of that sort of charge to a charge arising from a failure to complete a sale of land.[62]I am not able to decide that the Defendant has no real prospect of showing this clause to be an unenforceable penalty. Had I not decided against the Claimant I would have given directions for its determination. Given the low sums at stake I expect those would have been relatively limited directions.

Other triable issues

[63]In submissions, the Defendants’ counsel referred to other potentially triable issues, which were to do with allegedly unsatisfactory dealings in the conveyancing, and the inability of the First Defendant to carry out proper searches in the time given by the notice to complete. Given my conclusions on the main issue, I have not dealt with these issues.

The claims for Damages

[64]Had I concluded that the Defendants’ defence did have no real prospect of success I would have had to decide what consequential relief to award.[65]The claim to the deposit over Wildacres seems to be made out. The evidence shows that the Claimant has sold the land and that is enough to entitle them to the deposit.[66]In respect of Fairview the position is, in my judgment, unsatisfactory. The Claimant alleges that it sold the plot for less than the First Defendant agreed to pay and so claims damages. It exhibits a redacted copy of the signed auction contract but not of the conveyancing documents. It is therefore not clear to me if the buyer did purchase subject to the deed of covenant which is said to be required of the Defendants here. I am concerned, therefore, as to whether in deciding the damages sought, I am comparing like with like.[67]In any event, the Defendants have had almost no opportunity to respond to this assertion, and it is not set out in the details of claim. I would, therefore, have required the Claimant to amend its details of claim and given the Defendants an opportunity to respond.

Conclusion

[68]Referring to the list of issues set out above (paragraph 19): i) The Claimant was not ready, willing and able to complete the contracts when it served the Notices to Complete and on the contractual completion date and so their claim fails. ii) If I had not decided the above, I would have decided that:a. [not applicable in light of the above];b. [not applicable in light of the above];c. the Defendants have no real prospect of established that the contracts are unenforceable as unconscionable bargains but do have a real prospect of establishing that the provisions permitting the Claimant to unilaterally bring forward the time to complete were unenforceable as being unusually onerous.d. The Defendants do have a real prospect of establishing that the claim includes a claim for an additional premium which is an unenforceable penalty. iii) It follows from (i) above that the Claimant was in repudiatory breach by serving notices to complete when it was not ready, willing and able to do so, thus entitling the Defendants to rescind the contracts. iv) The Defendants are entitled to repayment of the deposits. Had I not reached the decision at (i) above, the Claimant would have been entitled to the deposit over Wildacres but the claim for damages in respect of Fairview would have required further directions.[69]It follows that I shall(i) allow the Defendants’ applications for summary judgment,(ii) allow the First Defendant’s counterclaim for return of the deposits plus interest,(iii) dismiss the Claimants’ applications and(iv) dismiss the claims.[70]I shall invite further submissions, initially in writing, on any consequential issues if they cannot be agreed.