A dispute over delay to the completion of the £100m-plus sale of a Windsor shopping centre is to be heard by the Court of Appeal before the end of the year.
The court is scheduled to hear the case – in which sellers Analytical Properties and Analytical Portfolios are challenging a ruling that buyers British Overseas Bank Nominees and WGTC Nominees are entitled to damages for the month-long delay – on 17/18 December.
In March, Deputy Judge Richard Sheldon QC ordered an inquiry as to the buyers’ losses resulting from the delay to the sale of the King Edward Court shopping centre. The buyers successfully argued that, on the true construction of the sale and purchase agreement (SPA) made on 13 December, the sellers were obliged to provide emergency lighting certificates (ELCs) and complete on the contractual completion date of 17 December 2013.However, they failed to supply the ELCs until 14 January 2014 and failed to complete the SPA until 17 January 2014.
The judge said that the purchase price was £104,737,973 less a “rental top-up deduction” but that the sellers maintained that their obligation was to obtain the ELCs as soon as practicable and that this obligation was a condition precedent to both the buyers’ and their respective obligations to complete. In other words, they claimed, neither they nor the buyers could be required to complete until the ELCs were obtained.
However, the judge said that he reached the “clear view” that this was not correct, finding that the key clause was introduced for the buyers’ protection and that the sellers’ obligation was to obtain and provide the ELCs “by actual completion”.
He said that it was accepted by the sellers that it followed that they would be liable in damages for breach of the SPA, to be assessed by the taking of an account or inquiry with an interim payment on account of 50% of the losses claimed be paid by the sellers to the buyers.
Under an interim freezing injunction ordered by David Richards J, £615,000 of the purchase price was preserved in the hands of the sellers’ solicitors, and the judge ordered that the injunction should remain in place pending the inquiry as to damages.
British Overseas Bank Nominees Ltd and anr v Analytical Properties and anr
