Sukhlall v Bansoodeb

A party cannot avoid the statutory formalities for a land sale by recharacterising part of a single bargain as a collateral contract. The pleaded facts must support a genuine division into separate transactions. Where the written land contract omits expressly agreed terms forming part of the same transaction, Law of Property (Miscellaneous Provisions) Act 1989, section 2(1), may render those additional terms unenforceable. A deceit claim must plead the representation, its deliberate falsity, reliance and damage with sufficient particularity. Summary judgment is appropriate where the pleaded case has no real prospect of success, including where a proposed alternative depends on facts not pleaded.

The claimant appealed against an order of His Honour Judge Dight in the Central London County Court dated 30 March 2012 granting summary judgment to the defendant. The claim arose from the sale of the claimant’s property. The claimant alleged that, although the written sale documentation recorded a price of £750,000, the defendant had orally agreed to pay a further £350,000.

The claimant pursued only claims for a collateral contract and deceit. The issues were whether the pleaded facts disclosed two genuinely separate contracts, whether the alleged collateral agreement was caught by section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, and whether the deceit claim was adequately pleaded.

1. The appeal was dismissed. The claimant had no real prospect of success on either cause of action, and summary judgment in favour of the defendant was correctly entered.
2. The collateral-contract plea merely gave a legal characterisation to facts previously pleaded. It alleged no separate agreement, whether written, oral or by conduct, by which the parties divided what had been pleaded as a single transaction into two contracts. The plea was therefore unsustainable.
3. The pleaded case described an oral agreement for the sale of the property for £1.1 million, payable in stages. The written contract stated only £750,000 and did not contain all the expressly agreed terms. The collateral-contract formulation was consequently an attempt to avoid the consequences of section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989.
4. Even if two contracts could be established, the claimant would still have to show that they were genuinely separate transactions, with one relating to the land and the other not relating to the land. The pleaded facts did not provide a realistic prospect of doing so. The reasoning in North Eastern Properties Ltd v Coleman & Quinn did not assist on the facts pleaded.
5. The deceit claim was inadequately pleaded. It did not identify the representation of fact, the respects in which it was deliberately false, reliance or damage. The lower judge’s reference to a possible different factual scenario identified what was missing from the claim; it did not recognise a viable reformulation of the existing pleading.
6. In the circumstances, and particularly after an earlier amendment and adjournment of the summary judgment application, the refusal to grant a further opportunity to amend was within the lower judge’s discretion.

1. High Court (Chancery Division): Appeal from the order of His Honour Judge Dight dated 30 March 2012 dismissed. Summary judgment for the defendant upheld.