Vendor and purchaser — Sale of leases — Leases subject to break clauses in favour of landlords for redevelopment — Action by vendor for damages for breach of contract — Purchasers’ appeal from decision in favour of vendor — Whether risk of operation of break clauses a defect of title — Title precarious but not defective — Appeal by purchasers dismissed
concerned three separate leases of properties used as guest-houses — Landlords
were the Trustees of Henry Smith’s Charity — The leases were vested in the
respondent (plaintiff below) — They were for terms of 17 years from Christmas
1970 and each lease contained a break clause for redevelopment or demolition
operable on six months’ notice to tenants expiring not earlier than Christmas 1981
— Appellants (defendants below) were a property company — The respondent,
having failed to persuade the landlords to accept a surrender of the leases in
return for long leases at a premium, decided to put them on the market — He had
formed the impression that the landlords did not contemplate operating the
break clauses — It should be mentioned, as the matter is referred to several
times in the judgment, that the respondent had at some time wrongfully removed
certain fireplaces from the properties — The respondent very soon received an
offer from the appellant company to purchase the leases at £350,000 and he
accepted the offer — The appellants were aware of the existence and effect of
the break clauses — Their object was to obtain the fag-ends of the leases in
order to put themselves in the situation of sitting tenants for negotiation
with the landlords — The contract of sale included a warranty that no break
notices had been served and an undertaking to reinstate the fireplaces —
Completion was due on May 29 1984
before the arrival of the completion date the purchasers purported to rescind
the contract, on the ground that, because of the breach of covenant in relation
to the fireplaces, the landlords intended, to the knowledge of the respondent,
to activate the break clauses — Events then moved even more rapidly — The
respondent put the properties back on the market for sale — The landlords
served the break notices, but, remaining apprehensive that the respondent might
still fill the properties with statutory tenants, entered into negotiations
with him — The result was that they agreed to pay him £185,000 in consideration
of the surrender of the leases — This left the way clear for the landlords to
grant new leases, at a premium, to the appellants
respondent in his action against the appellants claimed damages for breach of
contract to purchase the leases and the appellants, in reply, alleged that the
respondent had not made a proper disclosure of the risks affecting his title —
The judge (Mr Terence Cullen QC, sitting as a deputy judge of the Chancery
Division) decided that there had been no material non-disclosure by the
respondent and awarded him damages — The appellants then appealed
appellants’ case was that the respondent had a duty to disclose what he knew
about the landlords’ intentions in regard to the break clauses because this
would have affected the price for the leases — These ‘intentions’ were alleged
to constitute a latent defect in the title — The Court of Appeal rejected this
submission — The respondent’s obligation as a vendor was to disclose any fact
calculated to prevent a purchaser from obtaining such a title to the property
as that purchaser had been led to expect — The property which the appellants
were led to expect consisted of leases subject to an inherent danger of
destruction by the due exercise of the break provisions; this was a precarious,
but not a defective, title — This ever-present inherent risk was nowhere near
such a defect — There was no ground for a conclusion that the respondent had
failed to make a title at the material date — Appeal dismissed
The following
cases are referred to in this report.
Becker v Partridge [1966] 2 QB 155; [1966] 2 WLR 803; [1966] 2 All
ER 266, CA
Carlish v Salt [1906] Ch 335
Laurence v Lexcourt Holdings Ltd [1978] 1 WLR 1128; [1978] 2 ALL ER
810
Marsh and
Earl Granville, Re (1883) 24 Ch D 11
Sakkas v Donford Ltd (1982) 46 P&CR 290
This was an
appeal by Berkeley House Properties Ltd (the defendants below) from the
decision of Mr Terence Cullen QC awarding the plaintiff, Mr Aslan (the present
respondent) damages for breach of a contract for the sale to the appellants of
the
John Macdonald
QC and Colin Braham (instructed by Allan Jay & Co) appeared on behalf of
the appellants; F Ashe Lincoln QC and Paul Infield (instructed by Bennett
Taylor Tyrrell) represented the respondent.
Giving
judgment, FOX LJ said: This is an appeal by the defendants, Berkeley
House Properties Ltd (‘Berkeley House’), from a decision of Mr Terence Cullen
QC, sitting as a deputy High Court judge, that the plaintiff (‘Mr Aslan’) was
entitled to damages for breach of a contract for the sale to Berkeley House of
his leasehold interests in 15, 17 and 19 Cranley Gardens, London (‘the
properties’).
The properties
were held by Mr Aslan under three separate leases which he acquired in 1978. He
used the properties as guest-houses. The leases were for terms of 17 years from
Christmas 1970. Each lease contained, in clause 5(5), a break clause in the
following terms:
If the
Landlords shall desire to redevelop or demolish the premises at any time after
the twenty-fifth day of December One thousand nine hundred and eighty one and
shall give to the Tenant not less than six previous Calendar months’ notice in
writing of such desire expiring not earlier than the twenty-fifth day of
December One thousand nine hundred and eighty one then upon the expiration of
such period this Lease and the term of years hereby granted and everything
herein contained shall cease and determine but without prejudice to the right
or remedy of either party against the other for any antecedent non-payment
non-performance or breach.
The landlords
at all material times were the trustees of Henry Smith’s Charity (‘the
trustees’).
In 1981 Mr
Aslan tried to persuade the trustees to accept a surrender of his leases in
return for long leases at a premium. He did not succeed. The trustees were not
prepared to agree to the proposal unless Mr Aslan could give vacant possession
on the surrender — which he could not.
In the course
of the negotiations, the trustees pointed out that the properties had not been
kept in repair. In the end, Mr Aslan merely did the repairs in order to comply
with the repairing covenants in the leases. He was unable to develop the
properties because he was short of money. So he decided to try to sell all the
leases to developers. He was advised by local estate agents that the leases
were worth about £500,000.
On March 29
1984 Mr R W Cullum [FRICS], a chartered surveyor acting on behalf of the
trustees, visited the properties to investigate an anonymous communication that
a number of fireplaces had been removed. That was correct. Mr Aslan admitted
that he had removed seven fireplaces, and sold them for £15 each. They were
valuable fireplaces, and Mr Cullum made it clear that Mr Aslan must recover
them or the trustees would take action for breach of covenant. Mr Cullum was so
concerned about the matter that he called again on Mr Aslan the next day,
accompanied by Mr R H Clutton [FRICS], who held the office of surveyor to the
trustees. Mr Aslan said he would recover the fireplaces if he could but, if he
could not, he would replace them at a cost of up to £500 each.
In the course
of these meetings which Mr Cullum had with Mr Aslan about the fireplaces, he
noticed that the premises were nearly empty and, therefore, in a state where
redevelopment would be possible.
Mr Cullum
pointed out to Mr Aslan that if the trustees decided to operate the break
clauses, Mr Aslan’s statutory compensation would only be about £25,000, whereas
he thought he could persuade the trustees to offer Mr Aslan £100,000 for a
surrender. Mr Aslan’s reply to that was that he thought he could get £400,000
in the market.
The judge in
his judgment said that Mr Aslan told him that these meetings were directed
primarily to the question of the fireplaces and that the introduction of the
break clauses was a side issue. The judge said that he had no doubt that this
was the impression conveyed by Mr Cullum. Mr Cullum’s stance, said the judge,
was that the break clauses were not a strong weapon, as he took the view that
their operation would be frustrated, or could be frustrated, by the tenant’s
filling up the properties with rent-controlled tenants. Whether that was right
or not, it was evidently Mr Cullum’s view.
The judge
accepted the evidence of Mr Cullum and Mr Aslan that Mr Cullum merely pointed
out the effect if the trustees did decide to operate the break clauses or, as
Mr Aslan put it, pointed out the risk inherent in clause 5(5).
Mr Aslan,
faced with the position that while he had been advised that the properties were
worth £400,000 or more, the trustees were now offering only £100,000, decided
he needed further information. So he asked a surveyor whom he knew, a Mr D J W
Wright [FRICS], to go to see Mr Cullum and find out more about the trustees’
intentions. Mr Wright went to see Mr Cullum on April 2. As to the break
clauses, Mr Cullum said that the trustees did not generally adopt a hard
attitude about such clauses and left Mr Wright with the impression that the
trustees did not contemplate invoking them. Mr Wright telephoned his
information to Mr Aslan on the evening of the meeting (April 2).
On the basis
of this information, Mr Aslan decided to put the properties on the market. So,
on April 3, he instructed an estate agent to sell the properties as soon as
possible.
On the morning
of April 3 Mr Aslan received a letter from Mr Cullum, delivered by hand,
stating that Mr Cullum wished to inspect the premises on the afternoon of April
4 to check the position as to the fireplaces. The judge found that this
confirmed Mr Aslan in his view that the trustees’ main concern was the
fireplaces.
Matters moved
very fast. On the evening of April 3 Mr Meehan, on behalf of Berkeley House,
came to the offices of Mr Aslan’s solicitors with a view to an immediate
exchange of contracts for the purchase of the leases for the sum of £350,000.
Mr Aslan had another prospective purchaser willing to exchange at that price
also, but Mr Meehan arrived first. Berkeley House was represented on that
occasion by Mr Meehan (its joint managing director) and Mr Jay (its solicitor).
Draft leases
were available for inspection, but Mr Meehan was familiar with the break
clauses because he had had other dealings in respect of leases of other
properties in Cranley Gardens owned by the trustees. The judge found that Mr
Meehan had, on a previous occasion, acquired the fag-end of a Cranley Gardens
lease, and negotiated its surrender and the grant of a new lease by the
trustees for a longer term. In such a transaction the length of the fag-end was
of little consequence.
On this
occasion, however, Mr Jay, the solicitor, was concerned about clauses 5(5). As
to that, the judge found the following facts:
(1) Mr Jay asked if any notice had been served
under clauses 5(5). Mr Aslan said ‘No’.
(2) Mr Jay then told Mr Meehan that the trustees
could at any time invoke clauses 5(5) and bring the leases to an end on six
months’ notice. Mr Meehan said words to the effect that he was happy to take
the risk.
(3) Mr Meehan did try to telephone Mr Cullum, but
could not get him. Despite this, he made no further inquiry of Mr Aslan as to
the position in relation to the trustees.
(4) No other inquiry was at any time made by Mr
Meehan or Mr Jay as to the break clauses.
(5) No preliminary inquiries were made by
Berkeley House prior to contract. The judge concluded that this was not at all
odd in relation to a property developer’s seeking to acquire the fag-end of a
lease because the subject-matter of preliminary inquiries would be of no
interest to him. All he would want would be to be in the position of a sitting
tenant so as to be able to negotiate with the landlord.
Various
manuscript alterations were made on the contract. One of these was a warranty
that no notices had been given under clause 5(5). Another required the
reinstatement of the fireplaces before completion.
The draft contract
prepared by Mr Aslan’s solicitor contained the usual provision that the
contract was subject to the landlord’s consent to the assignment of the leases
(in accordance with the covenants therein). That, however, was amended so that
the sale was not subject to the landlord’s consent.
The judge said
that this again would normally be startling, but in the circumstances of the
case it was not, because Mr Meehan was quite satisfied that the leases would
not be forfeited even though the landlord’s consent was not sought before the
sale was completed.
The upshot was
that contracts were exchanged on April 3 for the sale of the leases for a total
of £350,000. Completion was to be on May 29.
On April 4 Mr
Cullum called upon Mr Aslan, as arranged, to discuss the fireplaces. In the
course of that meeting he told Mr Aslan that, at the meeting of the trustees
convened for April 10, he intended to recommend to the trustees that they
should operate the provisions of clause 5(5). He repeated his previous offer to
purchase the leases for £100,000.
In fact the
judge found that Mr Cullum did not make that recommendation on April 10. By
then he had learned of the contract for the sale of the leases to Berkeley
House, which had indicated that it would wish to enter into negotiations for
the surrender of the leases
the trustees that they should enter into negotiations with Berkeley House and
that only if the negotiations broke down should clauses 5(5) be invoked.
The
negotiations did not break down. Agreement was reached on June 6. However, on
April 13, Berkeley House purported to rescind the contract on the ground that
by April 2 Mr Aslan was aware that, because of the breach of covenant in
relation to the fireplaces, the trustees intended to operate the break clauses.
The
contractual date for completion of the sale by Mr Aslan to Berkeley House was
May 29. Berkeley House did not complete on that date. On June 1, the contract
still not having been completed, Mr Aslan gave notice to complete within eight
days. Berkeley House did not complete in accordance with the notice.
Accordingly, on June 14, Mr Aslan put the properties on the market for sale. No
point is taken as to the validity of the notice to complete as such.
Mr Aslan
having put the properties back on the market, it was evident to the trustees
that Berkeley House’s position as a purchaser was in doubt. As a result the
trustees served break notices under clause 5(5) on June 20.
The trustees,
however, were still apprehensive that, before the leases were finally
determined, Mr Aslan would fill the properties with statutory tenants. So they
negotiated with Mr Aslan, as a result of which terms were agreed under which
the trustees paid Mr Aslan £185,000 in consideration of the surrender of the
leases. The completion of that transaction enabled the trustees to grant new
leases, at a premium, to Berkeley House.
The
consequence of all that was that Berkeley House obtained its objective in the
sense that it acquired new leases of the properties for substantial terms. On
the other hand it had to pay (so it is said) a larger amount by way of premiums
than it would have had to pay if Mr Aslan had not sought to rescind the
contract.
We reach, therefore,
the position that in this action Mr Aslan claims damages for breach of contract
by Berkeley House. In response to that claim, Berkeley House replies that Mr
Aslan had not made proper disclosure regarding the risks to his title.
In para 9 of
the defence, Berkeley House refers to the warranty by Mr Aslan that no notice
had been served under clause 5(5) of the leases. In para 10 of the defence it
is pleaded as follows:
The warranty
referred to in paragraph 9(c) hereof was seriously misleading as the Defendant
well knew. Before contracts were exchanged the Plaintiff and/or his servant or
agent Mr Wright had been told by Mr Cullum a partner in Messrs. Cluttons . . .
that the Lessors would either:
(a) operate Clause 5(5) of each Lease so as to
determine the Plaintiff’s interest, or
(b) require the Plaintiff to surrender each
Lease.
Various other
defences were pleaded but were not pursued. The case, in the end, turned on the
issue of alleged non-discharge of an alleged defect in the title of Mr Aslan.
The judge
found that there was no latent defect in Mr Aslan’s title requiring disclosure
by him and that, in any event, if there was any non-disclosure it was not
material and would have made no difference at all to the purchase price.
Accordingly, he dismissed Berkeley House’s counterclaim and awarded damages to
Mr Aslan for breach of contract.
Berkeley
House’s case is, in substance, as follows: it is the duty of a vendor to
disclose all latent defects in title known to him. Any fact calculated to
prevent the purchaser’s obtaining such a title to the property as he is led to
expect constitutes a defect of title. The purchaser is not under an obligation
to make inquiry as to defects in the vendor’s title; it is the duty of the
vendor to make full disclosure to the purchaser. In particular he must, it is
said, disclose all facts which might materially affect the purchase price.
Berkeley House
assert the following circumstances:
(1) Mr Cullum had pointed out to Mr Aslan that if
the trustees decided to exercise their rights under clauses 5(5), he would
obtain only the statutory compensation of £25,000, but that he (Mr Cullum)
might be able to persuade the trustees to pay Mr Aslan £100,000 for a surrender
of the leases.
(2) On April 3 Mr Aslan was worried about having
to surrender the leases. He therefore set up the contract race.
(3) At the contract meeting on April 3 Mr Meehan
knew nothing about the risk communicated to Mr Aslan by Mr Cullum that the
trustees might operate the break clauses and force a surrender.
(4) The disclosure of the surrender risk would
have affected the purchase price.
What is being
asserted in the present case is that there was, at the date of the contract, a
latent defect in Mr Aslan’s title which was not disclosed. The nature of the
contract between Mr Aslan and Berkeley House was a sale of three leasehold
interests. There is no doubt that Mr Aslan was absolutely entitled to the three
leases which he contracted to sell. There was no defect in that title at all.
The continued existence of the leases was, of course, precarious. But that was
in no way due to a defective title. It was inherent in the property which was
being sold. It derived from the provisions of clauses 5(5) under which the
leasehold terms could be brought to an end at the will of the trustees by a
notice properly given under those clauses. Mr Meehan and his solicitors were at
all times fully aware of these provisions.
That remained
the position on May 29 (the contractual completion date) and also on June 1
(the date of the notice to complete) and on June 9 (the date of expiry of the
notice). On all these dates, as on the date of the contract itself, Mr Aslan
was able to convey precisely the title that he contracted to convey.
It is said,
however, that he had an obligation to disclose what he knew as to the
‘intentions’ of the trustees regarding clause 5(5) because it would have
affected the price of the leases. Those ‘intentions’ are said to constitute a
latent defect in the title.
The obligation
of Mr Aslan, it seems to me, was to disclose any fact calculated to prevent the
purchaser from obtaining such a title to the property as it was led to expect
(see Halsbury, 4th ed, vol 42, p 57). The property which Berkeley House
was led to expect it would get consisted of leases which could be destroyed at
any time by the due exercise of the clause 5(5) powers. When I say ‘destroyed’
I disregard protective statutory provisions, such as Part II of the Landlord
and Tenant Act 1954, which are not, in practical terms, material to the present
case.
What, then,
had occurred which so increases that risk as to constitute a defect of
title? By way of preliminary, I should
mention that it is said that if Mr Aslan had already received notices under
clauses 5(5), he would have been bound to disclose them. That is no doubt so.
But such notices would directly and fundamentally go to title since, once
served, they would bring the leases to an end at the expiry of the six-month
period. The property being sold would then be fundamentally different from the
property as it existed before the notice was served.
The
information available to Mr Aslan was this. During the meetings on March 29 and
30, Mr Cullum pointed out that the trustees could operate clause 5(5), in which
case Mr Aslan would get only the statutory compensation of £25,000, whereas the
trustees might be persuaded to pay £100,000 for a surrender. But as to that I
make two observations: first, the references to clause 5(5) were exactly the
sort of negotiating points one would expect the trustees to make if any dispute
or negotiations for new leases arose between the trustees and Mr Aslan. It
would surprise nobody. It was a reminder of what the trustees could do. Second,
the impression that Mr Cullum made on Mr Aslan was that clauses 5(5) were in fact
a side issue and Mr Cullum’s main concern was the fireplaces.
Mr Cullum’s
evidence in cross-examination on October 24 at p 26A was as follows:
Q And you mainly complained about the breach
of covenant and therefore sent a letter to Mr Aslan in which you only referred
to the fireplaces. (A) Yes.
Q And it would be fair to say, would it not,
that you were making clear to Mr Aslan that your principal complaint was about
this breach of covenant? (A) Yes.
Q And you were anxious to get the fireplaces
replaced, or proper compensation paid?
(A) Correct.
Q So much so that on April 3 you actually
sent round a letter by hand to Mr Aslan — we have got that, I think, at C49.
Let us have a look. I am sorry; C49 is your letter.
THE DEPUTY
JUDGE: C56.
MR
ASHE-LINCOLN: My Lord, I am grateful. (To the Witness): C56: we see your letter
of April 3? (A) Yes.
Q Mr Aslan said that you sent it round by
hand? (A) Yes.
Q The only reference you make there is to
fireplaces? (A) Correct.
Q So I think you would fairly agree that in
Mr Aslan’s mind at any rate the danger that he was in at the moment was breach
of covenant regarding the fireplaces — do you follow? (A) Yes; I do follow. Certainly that was the
principal reason for the initial inspection, and the only reason to make any
subsequent inspections.
Q And you were saying to Mr Aslan now:
‘Having broken your covenant in that way, you have put yourself in a very
dangerous situation’? (A) Correct.
Q ‘And therefore you would be very wise if
you accepted my generous suggestion of £100,000 for a surrender’. Is that
right? (A) Yes, that is right.
Accordingly, it
seems to me that Mr Aslan would be justified in regarding the reference to
clauses 5(5) as a side issue. Moreover, the trustees evidently did not suppose that
the existence of the clauses placed them in a dominant position. Mr Cullum was
apprehensive that if Mr Aslan was pushed too far, he would fill up the
properties (which were nearly empty) with statutory tenants in the six months
after the service of the termination notices. The trustees, therefore, had to
move with caution. The service of notices could, on Mr Cullum’s view, have done
them more harm than good.
Up to this
point, therefore, the trustees had raised two matters. The first (and major
one) was the breach of covenant regarding the fireplaces. The trustees were
being aggressive about that. The matter of the fireplaces, however, was
specifically dealt with in the contract between Mr Aslan and Berkeley House.
The second matter, which the judge found that Mr Aslan regarded (and was
intended by Mr Cullum to regard) as a side issue, was the possibility of the
trustees’ serving clause 5(5) notices. The possibility of the service of such
notices was an ever-present risk which was inherent in the property itself. It
seems to me, thus far, to come nowhere near a latent defect in title.
The matter,
however, does not stop there. Mr Aslan wanted to know more about the trustees’
intentions, so he sent Mr Wright to talk to Mr Cullum. Mr Wright, after that
meeting, reported to Mr Aslan that he was left with the impression that the
trustees did not intend to operate clauses 5(5).
The position,
therefore, at the date of the contract for the sale to Berkeley House was that,
while there was always the risk that the trustees might operate the clauses,
the information available to Mr Aslan was that they did not contemplate doing
so. Thus, so far from the risk being greater than that which normally existed
in consequence of the clauses it was, so far as Mr Aslan knew, rather less.
In my opinion,
Mr Aslan contracted to sell the very title that he owned, no more and no less.
That title was, of its nature, precarious — and obviously so to anybody who
read the leases. But it was not defective.
It is said
that Mr Aslan set up the contract race on April 3. That may be so. But neither
Mr Aslan nor Mr Meehan was a babe in the property world. If Mr Aslan jostled Mr
Meehan into signing the contract on April 3, Mr Meehan knew exactly what he
wanted and made it clear that he was prepared to take risks about the operation
of clause 5(5). What he wanted was a sufficient interest in the leases to get a
foot in the door to enable him to negotiate with the trustees. Fag-ends of
terms would be sufficient. His assessment of the position seems, in that
respect, to have been quite accurate. By June 6 he had negotiated a deal with
the trustees. Berkeley House says that deal was less favourable than Mr Meehan
might have obtained but for the clause 5(5) threat. But Mr Meehan knew of the
breach of covenant regarding the fireplaces, and he knew that the trustees
could at any time invoke clause 5(5). As I have indicated, Mr Aslan had no
reason to suppose that the risk was any greater than it always was; in fact,
the information from Mr Wright was that they did not intend to invoke the
clause; Mr Cullum indicated to Mr Wright that the trustees did not generally
adopt a ‘hard’ attitude.
It seems to me
that Berkeley House’s case in this action is an attempt to introduce into the
field of title matters which, if they are to be material at all, more properly
belong to the field of representation. Mr Meehan knew that he was buying a
risky title. If he wanted to assess further the chances of the trustees
threatening to operate the break clauses and thus forcing a surrender of the
leases, he could have asked Mr Aslan what his information was. If Mr Aslan gave
a misleading reply, Berkeley House would then have had a remedy. What actually
happened was that Mr Aslan contracted to sell the very title that he owned. There
was no defect latent or patent in that title.
The position,
therefore, seems to me to be this:
(1) Mr Aslan had a good title to the three leases
which he was able to convey in accordance with the contract at the date of the
contract, at the completion date, at the date of the notice to complete, and
the date of the expiry of that notice.
(2) Berkeley House was, at the date of the
contract, aware of the existence of clause 5(5) and the breach of covenant.
(3) Mr Aslan’s information at the date of the contract
was that the trustees were not contemplating the invoking of clause 5(5).
(4) Mr Meehan took the risk of the clause being
operated.
In the
circumstances, I see no basis for a conclusion that Mr Aslan was unable to make
a title in accordance with his contract at any material date.
We were
referred to certain authorities. I do not think they assist the appellants’
case. In Re Marsh and Earl Granville (1883) 24 Ch D 11, the vendors
offered an imperfect root of title (a voluntary conveyance) and sought to
exclude requisitions by a special condition.
Becker v Partridge [1966] 2 QB 155 was also a case where a vendor
sought to rely on a condition excluding objections to the title. The Court of
Appeal held that the condition was not a bar to a claim for rescission where
the vendor learnt from other sources that the subject-matter of the sale (an
underlease) had been unlawfully created in breach of covenant without consent
and might be worthless. Laurence v Lexcourt Holdings Ltd [1978] 1
WLR 1128 was a case of misrepresentation and common mistake. In Sakkas v
Donford Ltd (1982) 46 P&CR 290 the contract contained an undertaking
that the property was not subject to ‘any charge notice order restriction
agreement or other matter arising under the Planning Act’. The judge read those
words as meaning that the vendor knew of no such matter. He also held that that
was not correct, as the vendor did, in fact, know about a very material
planning matter (which was not what the judge referred to as a mere shadow on
the property).
In Carlish
v Salt [1906] Ch 335 a party wall notice had been served and an award
actually made. The vendor disclosed neither.
All these
cases seem to me to be substantially different from the present, and do not
lead me to the conclusion that the title was in any way defective or that there
was any failure to disclose material information by Mr Aslan.
I would
dismiss the appeal.
STUART-SMITH and McCOWAN LJJ agreed and did not add anything.
The appeal
was dismissed with costs: a sum of £6,000 to be set off against order for
costs. Leave to appeal to the House of Lords was refused.
