Hawridge Strategic Land Limited v Millen Homes Limited [2026] EWHC 1934 (Ch)

[2026] EWHC 1934 (Ch)Case No PT-2025-001243
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 4/8/2026
Before
MASTER CLARK
Between
HAWRIDGE STRATEGIC LAND LIMITEDClaimantMILLEN HOMES LIMITEDDefendant
Kester Lees KC and Charles King (instructed by Pinsent Masons LLP) for ClaimantLina Mattsson (instructed by Bexley Beaumont Limited) for DefendantHearing Hearing date: 3 June 2026
Approved JudgmentThis judgment was handed down remotely at 10am on 4 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Master Clark:Application
[1]This is my judgment on two applications:(1) the defendant’s application dated 20 January 2026 for summary judgment, alternatively, to strike out the claim on the grounds that the statements of case disclose no reasonable grounds for bringing the claim;(2) the claimant’s application dated 16 March 2026 seeking summary determination of 3 issues relating to the agreements with which the claim is concerned.

Parties and the factual background

[2]The claimant, Hawridge Strategic Land Limited, specialises in strategic development land promotion. The defendant, Millen Homes, is a property developer.[3]The claim concerns land on the north west side of Bicknacre Road, East Hanningfield, Chelmsford (“the Land”).[4]On 14 June 2019, the defendant entered into 2 agreements. The first was an option agreement (“the Option Agreement”) with owners of the Land Anne Mossman and Andrew John Beharrell (“the Seller”) granting it, for a price of £5,000, an option to buy the Land.[5]The initial term of the Option Agreement (the First Option Period) was 5 years, and it is common ground that unless extended, the option granted by it would come to an end on 13 June 2024. The agreement contained provisions (in clause 2.3) entitling the defendant to extend the Option Period for a further 5 years (the Second Option Period) to 13 June 2029 by serving a written notice (ExtensionNotice) and paying a fee (Extension Fee) of £5,000.[6]The second (simultaneous) agreement (“the Assignment Agreement”) was made between the defendant and Inland Limited (“Inland”), which provided for the assignment to Inland, upon certain conditions being fulfilled, of the benefit of the Option Agreement.[7]On 24 January 2023, Inland and the claimant (then named Inland Strategic Land Limited) entered into an agreement entitled Asset Transfer Agreement.[8]On 5 October 2023, Inland entered into administration. On 6 June 2024, Inland acting by its administrators executed a Deed of Assignment (“the Deed of Assignment”) assigning Inland’s rights under the Assignment Agreement to the claimant. The defendant disputes that Inland could validly assign the benefit of the Assignment Agreement.[9]On 13 June 2024, the First Option Period expired without the rights under the Option Agreement having been exercised, or the defendant exercising its right to extend the Option Period. On 19 June 2024 the claimant served on the defendant notice of the assignment of Inland’s rights to it.[10]The claim form was issued on 28 November 2025. The defendant issued its application for summary judgment on 20 January 2026 before filing its defence.

Option Agreement

[11]The relevant provisions in the Option Agreement are:
“PARTICULARS … Extension Fee £5,000.00 (Five thousand pounds). First Option Period The period from the date of this agreement until and including 13 June 2024 … Option Fee £5,000.00 (Five thousand pounds). Option Period The First Option Period and (subject to payment of the Extension Fee) the Second Option Period. … Second Option Period A period of 5 years commencing on the expiry of the First Option Period … 2 OPTION TO BUY 2. 1 In consideration of the Option Fee, which the Seller has received, the Seller grants the Option to [the defendant]. The Option Fee is non-refundable. 2. 2 The Option confers the right on [the defendant] during the Option Period to require the Seller to sell the whole of the Property at the Price on the terms of this Agreement. 2. 3 [The defendant] may extend the Option Period so that it extends to the Second Option Period by serving written notice on the Seller before the expiry of the First Option Period (time being of the essence) and paying the Extension Fee to the Seller within 10 working days following service of the Extension Notice (time being of the essence). If the Extension Fee has not been paid on or before such period as aforesaid, the purported extension of the Option Period will be invalid. 2.4 If [the defendant] serves a valid notice under clause 2.3, the Second Option Period will apply. … 2.7 The Option is binding on the Seller and the Seller's successors in title to the Property. 2.8 [The defendant] may assign the benefit of this Agreement to [Inland] without the consent of the Seller, subject to delivery of a deed of covenant in favour of the Seller from the assignee in a form previously approved by the Seller (such approval not to be unreasonably withheld or delayed) whereby the assignee assumes the obligations on the part of [the defendant] contained in this Agreement (including this clause 2.5). 9 TERMINATION 9.1 This Agreement will end if the Seller has not received a valid Option Notice by 4.00 pm on the expiry of the Option Period...”

Assignment Agreement

[12]The relevant provisions of the Assignment Agreement are: “CONDITIONALITY 3.1. This agreement is conditional upon:-3.1.1 The grant to [Inland] of Satisfactory Planning Permission and3.1.2 The Challenge Period having elapsed where there has been no Third Party Application or where there has been a Third Party Application it has been Finally Determined 3.2 [Inland] shall use its reasonable endeavours to satisfy the Condition Precedent defined as having the meaning at clause 3.1 as soon as reasonably possible and in any event prior to the End Date and shall provide regular reports to [the defendant] advising it as to the progress towards satisfaction of the Condition Precedent. 3.3 [The defendant] shall use its reasonable endeavours to assist [Inland] in satisfying the Condition Precedent as soon as reasonably possible and in any event prior to the End Date defined as the date being the last date of the Option Period … 3.5 In the event that agreement has not become unconditional on or before the End Date this Agreement shall automatically determine on the End Date without prejudice to the rights of either party against the other for any antecedent breach of their obligations in this agreement. … 5. EXISTING AGREEMENTS … 5.2 Subject to [Inland] complying with its obligations under this agreement [the defendant] shall: … 5.2.2 not terminate whether by action or omission [the Option Agreement] and to carry out all (including without prejudice to the generality of the foregoing service of any notice to complete) such steps actions and obligations so as to ensure [the Option Agreement] remains in force;[7]ASSIGNMENT 7.1 On the Unconditional Date [the defendant] shall subject to the consent of the Existing Owner defined in the Assignment Agreement as the Seller in the Option Agreement complete the Property Deed of Assignment and [Inland] shall provide to [the defendant] an executed and dated Deed of Covenant” [Unconditional Date is defined (in clause 1 Interpretation) asthe date that the Condition Precedent is satisfied and notice to that effect is served by Inland on the defendant.][13]Annexed to the Assignment Agreement is the draft “Property Deed of Assignment”, which provides for the assignment of the benefit of the Option Agreement from the defendant to Inland.

Deed of Assignment

[14]The relevant provisions of the Deed of Assignment are:
“1. Assignment 1.1 [Inland] assigns all its rights, title, interest, and benefit in and to [the Assignment Agreement] to [the claimant] with effect from the Effective Date the date of the Deed . 1.2 [The claimant] shall perform all [Inland]’s obligations under [the Assignment Agreement] from the Effective Date.”

The claim

[15]The particulars of claim allege that the defendant was in breach of clause 5.2.2. of the Assignment Agreement and/or in breach of a duty of care owed to the claimant, by failing to extend the Option Agreement under clause 2.3. This is said to be terminating the Option Agreement by omission.[16]This is expanded upon in the claimant’s Part 18 Response (at para 8 b):
“. … pursuant to clause 5.2.2 of the Assignment Agreement, the Defendant was obliged to not terminate whether by action or omission the Option Agreement and to carry out all (including without prejudice to the generality of the foregoing service of any notice to complete) such steps actions and obligations so as to ensure the Option Agreement remains in force. This necessarily includes the requirement to serve a written notice on the Seller to extend the Option Period to the Second Option Period.”
[17]The claim is for damages of more than £2.5 million, primarily comprising loss of profits.

Defendant’s application

[18]As noted, the defendant has not filed a defence. Its defences to the claim are to be found in its application notice, and skeleton argument, and are as follows:(1) The assignment of the benefit of the Option Agreement by Inland to the claimant was invalid, because the effect of clause 2.8 of the Option Agreement is that its benefit could only be assigned to Inland;(2) On the true construction of the Assignment Agreement, the defendant was not obliged to serve an Extension Notice at all;(3) If it was so obliged, it was pre-condition of the obligation that it was asked to do so, or paid (or given an offer of payment of) the Extension Fee or both; and the claimant did neither of these;(4) No facts are pleaded by the claimant that could, as a matter of law, give rise to a duty of care on the part of the defendant to serve an Extension Notice or pay the Extension Fee for the benefit of the claimant.[19]The defendant’s application is premised on the basis that the claimant has no real prospect of succeeding on any of these defences.[20]The claimant’s application seeks summary determination of the following issues:(1) Whether, on the proper construction of the Assignment Agreement, and in particular clause 5.2.2 thereof, the Defendant had a contractual duty to extend the Option Agreement pursuant to clause 2.3 thereof;(2) Whether the Defendant breached clause 5.2.2 of the Assignment Agreement by failing to extend the Option Agreement pursuant to clause 2.3 thereof;(3) Whether clause 2.8 of the Option Agreement affords the Defendant any defence to the claim. Legal principles Summary judgment

Legal principles

[21]CPR 24.3 provides, so far as relevant:
“The court may give summary judgment against a claimant … on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, … or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
[22]A comprehensive summary of the principles emerging from the relevant caselaw was provided by Cockerill J in Daniels v Lloyds Bank [2018] EWHC 660 (Comm) [49], recently adopted by Nicklin J in Lawrence v Associated Newspapers [2023] EWHC 2789 (KB); [2024] 1 W.L.R. 3669 at [77]:
“(i) The burden of proof is on the applicant for summary judgment; (ii) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91; (iii) The criterion ‘real’ within CPR r 24.2(a) is not one of probability, it is the absence of reality: Lord Hobhouse of Woodborough in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, para 158; (iv) At the same time, a ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] CP Rep 51, para 8; (v) The court must be astute to avoid the perils of a mini-trial but is not precluded from analysing the statements made by the party resisting the application for summary judgment and weighing them against contemporaneous documents (ibid); (vi) However disputed facts must generally be assumed in the claimant's favour: James-Bowen v Comr of Police of the Metropolis [2015] EWHC 1249 (QB) at [3]; (vii) An application for summary judgment is not appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial of the issue having regard to all the evidence: Apovdedo NV v Collins [2008] EWHC 775 (Ch); (viii) If there is a short point of law or construction and, the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725; (ix) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial. The court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] Lloyd's Rep PN 526; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3;”

Striking out

[23]CPR 3.4(2) provides, so far as relevant:
“Power to strike out a statement of case (2) The court may strike out a statement of case if it appears to the court– (a) that the statement of case discloses no reasonable grounds for bringing …the claim;” (a) that the statement of case discloses no reasonable grounds for bringing …the claim;”
[24]As noted in the 2026 White Book (para 3.4.21), there is a considerable overlap between the court’s powers under CPR Part 24 and r.3.4; and the court has a discretion to treat an application made under CPR 3.4(2)(a) as if it were an application under Part 24.

Construction

[25]The general principles of interpretation are summarised in Marley v Rawlings [2015] AC 129 at [19] - [22]. At [19] Lord Neuberger said:
“… the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but, (b) ignoring subjective evidence of any party’s intentions.”
[26]Those principles are expanded upon by Popplewell J in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd (The “Ocean Neptune”) [2018] EWHC 163 (Comm), [2018] 1 Lloyd’s Rep. 654 in the following terms:
“The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”
[27]As to the factual matrix, both sides agreed that the court had before it all the evidence necessary for the proper determination of the question of construction; and that there was, therefore, no reasons for the court to decline to decide it.

Assignability of options: transfer of benefit

[28]For present purposes, it is sufficient to refer to Barnsley’s Land Options (8th edn) for the relevant principles: “3-001 Introduction An option to buy land is generally assignable. It vests in the holder a piece of property, namely, an equitable interest in land, and it is inherent in the nature of every piece of property that its owner should be able to dispose of it. As a property right an option can, in principle, be expressly or impliedly assigned. Nevertheless the context (i.e. the true construction of the agreement) may show that the option is personal to the grantee, or assignable only to a restricted category of persons. … Option freely assignable 3-002 The better view is that the instrument of creation does not have to contain words showing an intention that the option can be assigned before one can conclude that it is assignable. An option should not, it is considered, be regarded as different from any other property right which inherently carries with it all legal incidents, including the right of the grantee to sell and convey it (unless controlled by the terms of the grant). Consequently, although whether an option is personal or assignable is always a question of construction of the option agreement, a right which on its face is an option will normally be expected to bind the land (as opposed to being a merely personal right operating only between the immediate parties). Any intention that it is personal is likely to have to be apparent from the terms of the bargain, i.e. the document or the surrounding circumstances. Starting from first principles, the benefit of a contract can in general be assigned, although the burden cannot. An exception is a personal contract, i.e. one involving personal skill or confidence, e.g. a contract between an author and publisher. However, an option, like a contract for sale, is not in general a personal contract. The assignment of the rights of the option holder would not, in general, affect the grantor. For example, it is unlikely to make any difference to a grantor whether it executes a transfer of its property in favour of the grantee or the grantee’s assign. … In summary, an option to purchase is assignable property and is freely assignable without restriction, unless the agreement makes it clear that the option is not assignable or that there is a restriction upon assignability.” (case citations omitted) Introduction Option freely assignable Discussion and analysis Construction of clause 5.2.2 of the Assignment Agreement

Discussion and analysis

[29]I begin by considering the primary issue between the parties: whether clause 5.2.2 obliged the Defendant to serve an Extension Notice and pay the Extension Fee. It was common ground that this question of construction is capable of summary determination.[30]The starting point is the ordinary and natural meaning of the words in issue. The key word here is “terminate”. When used transitively, as here, it means to bring to an end. Where an act brings an agreement to an end, that is clearly within the scope of the meaning. Where an omission is referred to as terminating an agreement, that omission must in my judgment be the operative cause of the ending of the agreement.[31]In the Option Agreement, the Option Period is defined as “The First Option Period and (subject to payment of the Extension Fee) the Second Option Period.”. If the Extension Notice and payment required by clause 2.3 are not made, then the Option Period ends.[32]The first point to note is that the effect of the First Option Period not being extended is not that the Option Agreement ends. There is no express provision in the agreement that its term is the Option Period. The structure of the agreement is that the obligations and entitlements provided for in it are only exercisable during the Option Period.[33]There are provisions in the Option Agreement providing for it to come to an end. Under clause 20.2:
“20.2 Where [the defendant] is in substantial breach of any of its material obligations under the provisions of this Agreement and has failed to rectify the breach within a reasonable time after receiving written notice to rectify the same from the Seller or his professional advisors: 20.2.1 the Seller may terminate this Agreement by serving not less than ten (10) Working Days' notice on [the defendant]; 20.2.2 on expiry of the notice referred to in clause 20.2.1 this Agreement will terminate without affecting any other rights the Seller may have unless [the defendant] has disputed the breach by replying to the Seller in writing”
(emphasis added) 20.2.1 the Seller may terminate this Agreement by serving not less than ten (10) Working Days' notice on [the defendant]; 20.2.2 on expiry of the notice referred to in clause 20.2.1 this Agreement will terminate without affecting any other rights the Seller may have unless [the defendant] has disputed the breach by replying to the Seller in writing” (emphasis added)[34]In addition, paragraphs 2.2 and 2.3 of Schedule 3 to the Option Agreement provide:
“2 2 The first Price Calculation Notice must be served within 6 months of the grant of a Qualifying Planning Permission, otherwise this Agreement will end. 2.3 The Option must be exercised within 6 months of the agreement or determination of the Price in accordance with this Schedule 3, otherwise this Agreement will end.”
(emphasis added)[35]Under both sets of provisions, the effect of the defendant omitting to act is to cause the agreement to end. These are, in my judgment, the acts or omissions to which clause 5.2.2. is directed.[36]Thus, even if the effect of not extending the Option Period were, on the proper construction of clause 5.2.2, an omission which brings the Option Period to an end, it does not, in my judgment, bring the agreement to an end. The agreement continues, although the parties are no longer able to exercise the rights or subject to the obligations which only subsist during the Option Period.[37]In any event, I do not consider that the effect of not extending the First Option Period is to terminate the Option Period by omission. In my judgment, the proper analysis is that, if not extended, the Option Period ends by effluxion of time, and not as the result of an omission. That omission could possibly be characterized as causally responsible for the end of the Option Period, if the defendant were under a separate duty to extend the Option Period. No such duty is found in the Option Agreement or could, in my judgment, properly be alleged.[38]The claimant relied upon clause 9.1 which expressly provides that:
“This Agreement will end if the Seller has not received a valid Option Notice by 4.00 pm on the expiry of the Option Period […]”
[39]It submitted that not extending the Option Period (and its consequent expiry) resulted in the Option Agreement terminating by reason of that omission. I reject that submission for the same reasons given above: the reason for the Option Period expiring is the effluxion of time, not the omission to extend it. I note that the claimant does not allege that not serving a valid Option Notice was a breach of clause 5.2.2.[40]The claimant also relied upon the fact that clause 5.2.2 imposes an obligation on the defendant to:
“carry out all (including without prejudice to the generality of the foregoing service of any notice to complete) such steps actions and obligations so as to ensure [the Option Agreement] remains in force”
[41]The claimant submitted that, properly construed, that language is directed to the achievement of a continuing state of affairs, and is therefore inconsistent with a merely passive obligation. Where, as here, it submitted, the only mechanism by which the Option Agreement could be kept alive was by service of an Extension Notice and payment of the Extension Fee in accordance with cl. 2.3, those steps necessarily fell within the scope of the obligation imposed.[42]However, this obligation is, in my judgment, limited to taking steps so that the agreement remains in force, and does not extend to an obligation to extend it beyond its term.[43]I turn to the overall purpose of the Assignment Agreement. It is a conditional assignment of the benefit of the Option Agreement pending satisfaction of the Condition Precedent (obtaining planning permission for the Land).[44]Inland’s entitlement to the assignment of the defendant’s rights under the Option Agreement is predicated upon:(1) payment of the Initial Assignment Fee of £35,600 (payable on the signing of the agreement);(2) Inland assuming the burden of obtaining planning permission; and(3) payment of a Further Assignment Fee of 5% of the open market value of the Land (less the Initial Assignment Fee).[45]Inland’s entitlement is also conditional upon the Condition Precedent being met before the last date of the Option Period (the “End Date”), with the Option Period being defined as in the Option Agreement:
“The First Option Period and (subject to payment of the Extension Fee) the Second Option Period.”
[46]The defendant’s obligations under the Option Agreement during the Option Period included:(1) using its reasonable endeavours to assist Inland in satisfying the Condition Precedent as soon as reasonably possible, and in any event before the End Date: clause 3.3;(2) not to promote any scheme competing with the Development within a mile radius of the Property during the Option Period without the Seller's approval, such approval not to be unreasonably withheld or delayed: clause 4.4;(3) the obligations in respect of planning permission imposed on it by clause 4.5, including to: “4.5.8 use reasonable endeavours to maximise the Net Developable Area (as defined in Schedule 3) taking into consideration any technical constraints of the Property; 4.5.9 use reasonable endeavours to secure appropriate restrictive covenants in the form of the transfer of any areas to be transferred to the local planning authority (or any other authority) pursuant to a Planning Agreement restricting the use of the land to the purpose for which the land is transferred; 4.5.10 use reasonable endeavours to minimise the costs of any contributions to be made pursuant to: (a) any Planning Agreement; (b) any agreement required to be entered into pursuant to Section 278 of the Highways Act 1980; and (c) CIL; 4.5.11 use reasonable endeavours to minimise the cost of Infrastructure; 4.5.12 use reasonable endeavours to minimise the Affordable Housing; 4.5.13 use reasonable endeavours to obtain a Satisfactory Planning Permission as soon as reasonably practicable;” (a) any Planning Agreement; (b) any agreement required to be entered into pursuant to Section 278 of the Highways Act 1980; and (c) CIL;(4) not to end the agreement (and thereby to continue to be subject to the above obligations): clause 5.2.2.[47]The claimant submitted that the only cost to the defendant of extending the Option Period was £5,000. I reject that submission. The obligations set out above are significant, and involve correspondingly significant time and expenditure.[48]This is the context in which the issue of whether clause 5.2.2 required the defendant to extend the Option Period arises. The onerous nature of that obligation points against that construction. Given its consequences, if the parties had intended it, they could have expressly provided for it.[49]I conclude therefore that on a proper construction of clause 5.2.2. the defendant was not contractually obliged to extend the Option Agreement pursuant to clause 2.3 of that agreement.

Breach issue

[50]It follows from the above that the defendant was not in breach of clause 5.2.2.

Assignment

[51]In its application notice, the defendant relied upon clause 2.8 of the Option Agreement as prohibiting assignment of that agreement other than to Inland, so that the claimant had no standing to bring the claim.[52]However, the claimant does not rely upon the Option Agreement having been assigned to it. Its rights derive from the Deed of Assignment. Clause 2.8 has no application to this assignment.[53]In its skeleton argument and oral submissions, the defendant then submitted that the Assignment Agreement was a personal contract and therefore unassignable. This point was not taken in its application notice, nor in the evidence in support of its application.[54]There is no express provision in the Assignment Agreement prohibiting assignment. The defendant relied on the fact that under clause 3.2 of the agreement, Inland covenants to use reasonable endeavours to obtain planning permission for the Land and the defendant covenants to carry out its obligations under the Option Agreement. The identity of the parties is therefore, it submitted, clearly material to the performance of these agreements. It referred me to the following authorities: Tolhurst v Associated Portland Cement Manufacturers [1902] 2 KB 660 at 669; Chitty on Contracts paras 23-055 to 23-057; Snell’s Equity at para 3-049.[55]As to this, the Assignment Agreement incorporates the Standard Property Commercial Conditions (Second Edition), with the modification that condition 1.5 shall not apply: clause 2.4. Condition 1.5 provides:
“1.5 Assignment and sub-sales 1.5.1 [Inland] is not entitled to transfer the benefit of the contract. 1.5.2 [The defendant] may not be required to transfer the property in parts or to any person other than the buyer”
[56]The Assignment Agreement therefore expressly provides that there is no contractual prohibition on assignment of its benefit. The parties’ intention to be inferred from this provision is that the benefit of the Assignment Agreement was freely assignable by Inland. This clear intention, in my judgment, outweighs any considerations as to the nature of the parties’ rights and obligations under the Assignment Agreement.

Whether clause 5.2.2 contains a condition precedent

[57]The defendant’s skeleton argument raised an argument (not in its application notice) that the words “Subject to [Inland] complying with its obligations under this agreement” create a condition precedent for the defendant to perform its obligations. Both sides filed supplemental written submissions on this at my direction following the hearing. Since it is unnecessary to decide it and I have not heard oral argument, I will not lengthen this judgment by doing so.

Duty of care

[58]In its oral submissions, the defendant accepted (rightly) that if the Assignment Agreement were itself freely assignable, then the allegation that the defendant owed a duty of care to the claimant was not strikable. I therefore decline to strike it out.

Conclusions

[59]For the reasons set out above therefore, I will grant summary judgment against the claimant on its claim based on clause 5.2.2, but not on its claim based on the defendant owing it a duty of care.