Durkan Estates Limited v Wallace Estates Limited

On an application for summary judgment, the court must decide whether the claim has a realistic prospect of success and whether there is any other compelling reason for trial. It may decide a short point of law or construction, but should not conduct a mini-trial where the outcome depends on disputed facts or evidence reasonably expected to emerge at trial.

Where time is not of the essence, delay does not ordinarily entitle a party to terminate at common law. The breach must deprive the innocent party of substantially the whole benefit of the contract or objectively demonstrate an intention to abandon performance. The assessment is highly fact-sensitive and includes the contractual machinery for curing breaches, the causes and likely duration of delay, remediability, progress made and the parties’ conduct. Building safety obligations and enforcement risks do not themselves convert a non-essential time stipulation into a condition.

Durkan agreed to carry out building safety remediation works for Wallace under a Remediation Agreement concerning Centrillion Point. The First-tier Tribunal had made a remediation order under the Building Safety Act 2022, and Wallace later terminated the Agreement, alleging repudiatory or anticipatory breach based principally on delay and the failure to provide finalised plans and specifications.

Durkan brought proceedings seeking declarations that the termination was unlawful. Wallace applied for reverse summary judgment on the claim and summary judgment on its counterclaim. The application was confined to the alleged common-law right to terminate and did not determine contractual termination for Substantive Breach. The central questions were whether the Completion Date had been displaced or rendered subject to an estoppel, whether the alleged delay was repudiatory, and whether Wallace had affirmed the Agreement.

1. Application dismissed. Durkan’s claim that the termination notice was unlawful had a real prospect of success. The issues required factual investigation and determination at trial. Wallace’s application for reverse summary judgment and summary judgment on its counterclaim was therefore dismissed.
2. Under CPR r 24.3, summary judgment is appropriate where the opposing party has no real prospect of success and there is no other compelling reason for trial. The court may determine a short point of law or construction where it has the necessary evidence, but must not conduct a mini-trial. Evidence reasonably expected to become available at trial may be relevant where there are reasonable grounds for believing that disclosure will materially add to or alter the evidence.
3. The contractual argument that the fixed date of 19 September 2025 remained operative was potentially powerful, but it could not dispose of the claim summarily. Durkan had a real prospect of establishing an estoppel by convention that the parties proceeded on the basis that completion would occur by reference to a period after Building Safety Regulator approval, rather than by the stated date. If established, that case would undermine the anticipatory-breach argument.
4. Time was not of the essence, and no notice had made it so. The alleged failures concerned an obligation to provide plans within a reasonable time and obligations to progress and complete the works by the Completion Date. Delay would justify common-law termination only if it deprived Wallace of substantially the whole benefit of the Agreement, or if the conduct objectively evinced an intention to abandon performance. The Building Safety Act 2022 context and the remediation order increased the importance of timely performance, but did not alter that test or turn the time stipulations into conditions.
5. The assessment was acutely fact-sensitive. It required consideration of the causes of delay, progress made, whether Durkan was making an effort to perform, whether the delay was remediable, the time needed for a replacement contractor, Wallace’s own contribution to delay, its absence of complaints and whether future performance retained substantial value. The contractual regime requiring notice and an opportunity to cure remediable breaches was part of all the circumstances.
6. There was also a real prospect that Wallace’s conduct before the termination notice could establish affirmation, including its recent representations that continuing with Durkan was preferable and that termination might cause further delay. Clause 11.2 did not provide a complete answer: it was reasonably arguable that the clause did not govern election, and that written submissions to the First-tier Tribunal could amount to written affirmation if made with Durkan’s knowledge. Whether any renewed right to terminate arose from continuing delay also required trial determination.

The judgment records that the First-tier Tribunal made a remediation order under the Building Safety Act 2022 on 4 January 2024 and refused Wallace’s application to vary the compliance date on 24 June 2025. No appeal from those decisions is stated. The present High Court application was dismissed.