Tanap Investments (UK) Ltd v Tozer and others

Breach of contract — Deposit paid — Purchaser alleging vendors’ failure to comply with contractual obligations — Whether such failure proven — Judgment for vendorsThe plaintiff as purchaser and the defendants as vendors agreed in writing on the sale of 110.51 acres unregistered freehold building land on the outskirts of Knights Enham, Andover, Hampshire. The site had outline planning permission for residential and non-residential use and the agreed price was £36m. The plaintiff paid a deposit of 10% on signing the agreement. The sale was not completed and the plaintiff claimed the return of the £3.6m deposit, together with interest and damages for breach of contract. In their counterclaim the defendants contended that the plaintiff acted in repudiation of the agreement, which they now accepted, and that they were entitled, inter alia, to damages in lieu of specific performance and forfeiture of the deposit. The plaintiff claimed in particular that the plans comprised among the documents in the abstract indicated that the vendors did not have title to a portion at the south end of the property. The plaintiff also contended, inter alia, that the defendants had failed to comply with the contractual procedure relating to the epitome of title and had failed to state that a memorandum of conveyance of August 1978, which was endorsed on the original conveyance of 1957, affected the property. Held The plaintiff’s action was dismissed. Judgment for the defendants on their counterclaim. 1. The defendants as vendors were under an obligation to deliver an epitome of all documents forming part of title to the property. The notice to complete procedure was only available to a party who was not in default. 2. Every instrument had to be abstracted which had been executed or had taken effect during the period for which title was required to be shown and which had dealt with or might affect the estate contracted for in the property sold. The defendants’ submission that the 1978 conveyance did not deal with or affect title to any part of the property contracted to be sold to the plaintiff was accepted. 3. With regard to the plaintiff’s contention that the defendants had failed to answer the requisition properly, in particular had failed to identify the 1978 conveyance as affecting the property, even if contrary to his lordship’s view that it affected title to the property sold off, the plaintiff was provided with the relevant information as to the effect of the conveyance in due time. The deposit was forfeited and the defendants’ damages were to be assessed. Robert Leonard (instructed by Bischoff & Co) appeared for the plaintiff purchaser; and Robert Reid QC and Christopher Russell (instructed by Parker Bullen, of Southampton) appeared for the defendant vendors.