Praetor Investments 5 Ltd v Transport House Developments Ltd & Anor

A party serving a notice to complete must be ready, willing and able to complete when the notice is served. Outstanding steps are permissible only if they can be completed by the specified completion date. A party is not ready if completion would breach a contractual obligation owed to a third party, even if good title could be conveyed. A later opportunity to resolve title or registration issues does not cure the defect. A costs clause does not, without clear wording, require a buyer to enter a deed of covenant. Alternative defences concerning unusually onerous terms and penalties may proceed where they have a real prospect of success. The notices were repudiatory, entitling the buyers to rescind and recover the deposits.

Praetor Investments 5 Ltd v Transport House Developments Ltd & Anor concerned auction contracts for the purchase of two plots of land. The claimant had agreed to buy the plots from their owner under a separate Top Contract containing overage obligations and requiring a deed of covenant on resale. The defendants failed to complete after the claimant brought forward the completion date and served notices to complete.

The claimant initially sought specific performance, later seeking to retain one deposit and recover damages after resale. The defendants sought summary judgment and permission to counterclaim for repayment of the deposits. The central issue was whether the claimant was ready, willing and able to complete despite its obligations under the Top Contract. The court also considered alternative defences based on unconscionable bargains, unusually onerous terms and penalties.

Disposition. The defendants’ applications for summary judgment succeeded. The First Defendant’s counterclaim for repayment of the deposits with interest succeeded. The claimant’s applications and claims were dismissed.

1. Summary judgment. Under the Civil Procedure Rules 1998, rule 24.3, the applicant had to show that the opposing party had no real prospect of success and that there was no compelling reason for a trial. A short point of law or construction could be decided on the evidence, while evidence reasonably expected to be available at trial had to be considered.
2. Readiness to complete. A party serving a notice to complete had to be ready, willing and able when the notice was served. Remaining steps were permissible only if they could be completed by the specified completion date. The court applied the principles in Cantt Pak Ltd v Pak Southern China Property Investment Ltd [2018] EWHC 2564, Aero Properties Ltd v Citycrest Properties Ltd [2002] 2 P&CR 21, Quadrangle Development v Jenner [1974] 1 WLR 68 and Oakdown v Bernstein (1985) 49 P&CR 282.
3. Top Contract. The claimant would have breached the Top Contract by transferring the plots without the First Defendant entering the required deed of covenant. That meant it was not ready, willing and able to complete, even if the transfer would have conveyed good title. Special Condition 11 required payment of costs but did not require entry into the deed. Special Condition 7.2 did not bar an objection based on breach of the Top Contract. The absence of an agreed draft deed also made the alleged implied obligation uncertain. A possible later resolution through registration or requisitions under section 27 of the Land Registration Act 2002 did not cure the defect.
4. Alternative defences. The unconscionable-bargain defence had no real prospect because there was no evidence of knowledge of the defendant’s difficulties or morally culpable conduct. The court applied the approach described in Boustany v Pigott (1995) 69 P&CR 298 and Fry v Lane (1888) 40 ChD 312. By contrast, the defendants had a real prospect on the unusually onerous completion provision, applying the doctrine stated in MS Amlin Marine NV v King Trader Ltd [2026] 2 WLR 163. They also had a real prospect of showing that the further premium was an unenforceable penalty under Cavendish Square Holding BV v Makdessi [2016] AC 1172.
5. Consequences. The claimant’s notices were repudiatory breaches, entitling the defendants to rescind and recover the deposits. The alternative observations were conditional on disagreement with the principal conclusion. Further consequential matters were left for written submissions if not agreed.