“IN THIS AGREEMENT … “conducting media” means pipes wires cables and other conducting media providing services to and from the Property and the Retained Land … “the Planning Permission” means Planning Permission number 07/03455/APP dated the 15th day of September 2009 or such other planning consent or amendment granted to an application made by the Buyer with the consent of the Seller … “the Property” means Plot 5 … … “the Retained Land” means the land shown edged blue on the plan … “services” means soil water gas electricity and telephone … “the Title Number” means Title Number BM342167 “the works” means demolition of the buildings on the Property the Plots and the Retained Land the construction of a dwelling on the Property the construction and laying out of the access road as herein provided for the laying of conducting media and the provision of any landscaping and fencing 2. THE SELLER will sell with full title guarantee and the Buyer will buy the Property for the purchase price and interest will run on the purchase price less the deposit from the date hereof to the date of its payment … 5. FROM the date hereof and after the Buyer has complied with the terms of condition 6 the Seller will allow the Buyer and its employees and contractors access to the Property the Plots and the Retained Land for the purpose of carrying out the works 6.1 AS from the date hereof the Buyer shall be responsible for complying with the Sellers obligations under the Section 106 Agreement and will keep the Seller fully indemnified in respect of all liability relating thereto. … 7. THE BUYER will with all reasonable speed construct a dwelling on the Property and carry out the remainder of the works in accordance with the conditions of the Planning Permission and in accordance with Building Regulations requirements and the NHBC requirements (having first registered the dwellings with the NHBC) the dwelling to be conducted in a good and workmanlike manner using good quality materials … 10. BEFORE THE completion of the sale and purchase the Buyer will: (a) construct the access road coloured brown in a good and workmanlike manner to base course (without kerb stones) ready to be finished to the standard required by the local Planning Authority and the Highways Authority for adoption; (b) construct the access road coloured green to a stone finish (without edging) ready for base course and the final surfacing of the same as either block paving with appropriate edging or some other surface which is agreed between the Seller and the Buyer (acting reasonably); and (c) lay conducting media from the mains services to the boundary between the parts of the access road coloured brown and green … 15.1 TITLE to the Property is registered at the Land Registry under title number BM34267 … 17. THE SELLER consents to an entry being made at the Buyer’s costs by way of an agreed notice on the register of the Seller’s title to protect this Agreement, and agrees to sign a Form AN1 prepared by the Buyer for that purpose.”
“access road” means the road shown coloured brown and green on the plan “conducting media” means pipes wires cables and other conducting media providing services “the plan” means the attached plan “the plots” means plots 1 2 3 4 and 5 shown on the plan and for the avoidance of doubt plot 2 includes the access road “the Property” means the property hereby transferred “Retained Land” means the remainder of the land registered under the Title Number BM342167 as at the 1st day of January 2012 “services” means soil water gas electricity and telephone Rights granted for the benefit of the property The following rights are granted over the Retained Land for the benefit of the Property: 1. A right of way in common with all others entitled over the part of the access road coloured brown for the purpose of gaining access to and from the Property subject to the payment of one-fifth of the costs of repairing and maintaining the same. 2. The right to the supply of services to and from the Property through the conducting media situated in over or under the Retained Land and the right to enter thereon at reasonable times and on reasonable notice and for the purpose of inspecting repairing maintaining and renewing the same subject to doing as little damage as possible and forthwith making good all damage caused and subject to the payment of a fair and reasonable proportion of the costs of repairing maintaining and renewing those conducting media which jointly served the Retained Land and the Property. … Rights reserved for the benefit of other land. The following rights are reserved over the Property for the benefit of the Retained Land: 1. The right to the supply of services to and from the Retained Land through the conducting media situated in on over or under the Property and the right to enter thereon at reasonable times and on reasonable notice for the purpose of inspecting repairing maintaining and renewing the same subject to doing as little damage as possible and forthwith making good all damage caused and subject to the payment of fair and reasonable proportion of the costs of repairing maintaining and renewing those conducting media which jointly serve the Property and the Retained Land. … The Transferee for itself and its successors in title hereby covenants with the Transferor and his successors in title 1. To keep and maintain in good repair and condition the conducting media serving the Retained land situated in on or under the Property subject to the contribution hereinbefore referred to 2. To keep in good repair and condition the fences on the boundaries of the Property (Transferee to insert “T” marks when ownership of boundaries is known)”
“We understand that our clients have agreed between themselves that interest on that plot will be backdated to the1st January 2013 for that reason but we will need you to take instructions on that point and revert to us with confirmation.”
“We are writing to exercise our client’s option to purchase Plot 3 … in accordance with the Option Agreement … The exercise is conditional on the acceptance of the following variations and confirmations on your part: 1. That the deposit is amended to£10,000 . 2. That the deposit is held as stakeholder. 3. For the purposes of interest etc the date of exercise of the option is taken as 1 January.”
“… we are happy for you to take up the option on plot 4 as soon as you like, as we mentioned we will waive the deposit and will instruct our solicitor that we have done so.”
“Perhaps we could arrange to give you a loan when you pay us for the land re plot 3 at the end of July.”
“We write on behalf of [the Defendant] who wish to exercise their option to purchase Plot 4 … from your client … pursuant to the Option Agreement dated28 March 2012 . Given that the plots have been taken out of order, the Option has technically expired and your client has also agreed to proceed without a deposit in this instance. Bearing in mind the above, can you please confirm that you accept the Option as exercised notwithstanding the date and that we can proceed without deposit.”
“We do have our Clients’ instructions that the exercise of the option on plot 4 is to be backdated to July 5th 2013, and further that they will agree to proceed with no deposit.”
“Please accept this letter as Notice pursuant to the Contract dated28 March 2012 that our client wishes to exercise the option. The parties have agreed to waive the obligation to pay a 10% deposit pursuant to Clause 4.2 of the Option Agreement. Please confirm by return that the exercise of the option is accepted.”
“We are instructed that the exercise of the option will not be accepted while there remains a question as to whether your client has built outside the boundaries of the plot as offered by the terms of the option agreement. There is however an agreement between the parties that the option period as defined in the agreement will be extended to the 31st August to allow time for this issue to be resolved. … To be clear the exercise of the option is not accepted at this time because of the boundary issue but the option period is extended until the end of August and our clients will not accept any liability for any costs incurred by yours whatsoever in connection with these delays and boundary issues.”
“A party to a contract may act so as to show that it does not intend to enforce a contractual right or require performance of a contractual obligation. It is necessary that such conduct demonstrates a clear and unequivocal representation that its contractual rights would not be enforced. Mere silence in inactivity will rarely suffice. Knowledge or lack of knowledge of the contractual right in question is important. By so acting, it may by waiver lose the right or cease to be entitled to the performance either temporarily or permanently. …”
‘Where a party has made a unequivocal promise or representation to another party that it will not enforce its strict legal rights and the promise or representation is intended to be relied on and is in fact relied on, the first party may be estopped from successfully asserting its strict legal rights if it would be unconscionable or unjust to allow it to do so….The promise need not be supported by consideration, but it must be shown that the promise or assurance had a sufficiently material influence on the other party’s conduct to make in inequitable for the promisor to depart from it.’
“My understanding is that there was a nil deposit, which is what we did on 3, 4 and I thought was on 2.”
“A defendant will be held to have benefitted from the services rendered if he, as a reasonable man, should have known that the claimant who rendered the services expected to be paid for them and yet did not take a reasonable opportunity open to him to reject the proffered services, moreover, in such a case, he cannot deny that he has been unjustly enriched.”
“In the light of the judgments in Sempra Metals I would summarise the position as follows. i) First, it is clear that damages are in principle recoverable, subject to ordinary principles of remoteness and mitigation, for breach of an obligation to remit money, where the failure to remit has caused a loss. ii) Second, unless there is some positive reason to do otherwise, the law will proceed on the basis, at any rate in the commercial context, that a claimant kept out of its money has suffered loss as a result. That represents commercial reality and everyday experience. Specific evidence to that effect is not required and, even if adduced, may well be somewhat hypothetical and thus of little assistance. For example, a business man may well be unable to say precisely what he would have done differently if a particular payment had been made to him when it ought to have been, especially if (as apparently in this case) he was unaware that the money was being withheld. Extensive disclosure, which would no doubt be demanded by the defendant, is unlikely to assist. But that does not mean that no loss has been suffered. … iii) A solvent claimant who seeks to recover damages which exceed the cost of borrowing to replace the money of which it has been deprived is likely to be met with the defence that the claim is too remote or that it has failed to mitigate by borrowing in order to replace the money lost, in which case its recovery may be limited to that borrowing cost, which will include the need to pay compound interest, that being the only basis on which money can be borrowed commercially. The position may, however, be different if there is a good reason why the claimant should not have gone into the market to borrow the missing money, for example if it did not know and should not reasonably have known that the money was missing. … iv) In other cases I consider that it is not necessary for the claimant to produce specific evidence of what it would have done with the money or what steps if any it took to borrow or otherwise to replace the money of which it was deprived. As noted above, it may often be impossible or at any rate extremely difficult to produce such evidence, especially if that would mean attempting to disentangle a claimant's overall business operations in an artificial attempt to attribute specific activity such as borrowing to the non-remittance of specific funds. Instead, at any rate in commercial cases and unless there is some positive reason to do otherwise, the law will proceed on the basis that the measure of the claimant's loss is the cost of borrowing to replace the money of which the claimant has been deprived regardless of whether that is what the claimant actually did. A conventional rate will be used which represents the cost to commercial entities such as the claimant and is not necessarily the rate at which the claimant itself could have borrowed or did in fact borrow. This avoids the need for protracted investigation of the particular claimant's financial affairs. As with other conventional measures (for example, the assessment of damages by reference to a market price in sale of goods cases) this approach has the advantage of certainty and predictability which is always important in the commercial context, as well as being broadly fair in the great majority of cases and avoiding expensive and often ultimately unproductive litigation. v) If a conventional borrowing cost is to be adopted in this way, the question whether interest should be simple or compound answers itself. While simple interest has the virtue of simplicity as Lord Hope observed, it also has the certainty of error and injustice. As their Lordships noted, it is impossible to borrow commercially on simple interest terms. I respectfully agree with Lord Nicholls that the law must recognise and give effect to this reality if it is to achieve a fair and just outcome when assessing financial loss. To conclude that, at least in a typical commercial case, the normal and conventional measure of damages for breach of an obligation to remit funds consists of compound interest at a conventional rate is therefore both principled and predictable, as well as being in accordance with what was actually awarded in Sempra Metals.”