Goldberg London Limited v Prime Lodge Developments Limited

On a summary judgment application, the court may determine a short point of law or construction where it has the evidence needed for a proper decision. It must not conduct a mini-trial or resolve matters requiring fuller factual investigation. A party cannot use fresh proceedings, or an expert determination procedure, to reopen a binding decision on the construction of an agreement.

Where a joint venture agreement requires development and subsequent sale of property, the court may order specific performance of the obligation to begin the sale process. A contractual obligation to provide accounting information may continue during the period between completion of development and sale.

The claimant and defendant were parties to a joint venture agreement concerning the development and sale of property. An earlier order had declared the agreement binding and determined the basis on which sale proceeds were to be distributed.

The claimant brought proceedings seeking declarations about matters to be considered by an independent expert in determining the distribution of sale proceeds. The defendant sought summary judgment on that claim and on counterclaims for accounting information, an order requiring the property to be sold, and related indemnity and costs orders.

The central issues were whether the earlier order could be reopened, whether the expert procedure could address matters already determined by the court, whether the agreement required the claimant to begin the sale process, and which parts of the counterclaim were suitable for summary determination.

1. Summary judgment. The court applied the principles in Easyair Limited (t/a Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch). The court must assess whether the claim has a realistic prospect of success, avoid a mini-trial, consider reasonably available evidence, and determine a short point of law or construction summarily where the necessary evidence and argument are available.
2. Binding earlier determination. The earlier order had determined the construction of clause 7 of the joint venture agreement. The claimant’s new claim was a disguised attempt to undermine that determination. The order remained binding notwithstanding the withdrawal of the appeal and could not be reopened in fresh proceedings.
3. An expert could not be directed to reconsider contractual construction already determined by the court. Any expert decision departing from that determination would be erroneous in law and challengeable under the contractual dispute-resolution machinery.
4. Accounting information. The obligation in clause 2.7 extended throughout the parties’ relationship, including the period after completion of construction and before sale. The court ordered disclosure of specified tenancy, banking, loan and accounting documents, but excluded construction contracts and related documents which went beyond accounting information.
5. Sale obligation. The agreement provided for both development and subsequent sale. The later deeds of postponement did not vary clause 5.1 or convert the project into one for long-term rental. The claimant was in breach of its obligation to appoint a reputable selling agent. Specific performance was appropriate because substitute performance was unavailable and damages would be difficult to assess.
6. Summary judgment was granted on the claimant’s claim, the accounting-information claim to the extent specified, and the obligation to commence the sale process. The court declined summarily to restate the distribution declaration, or to determine the remaining receiver, indemnity and costs claims.