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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 60
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CA27/06
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OPINION OF LORD
GLENNIE
in the cause
COUNTRYWIDE NORTH
LIMITED
Pursuers;
Against
GWM DEVELOPMENTS
LIMITED AND RACEVIEW LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Moynihan, Q.C., Dunlop; Simpson &
Marwick, W.S.,
Defenders: Cullen, Q.C.; Burness, LLP
23 March 2007
Introduction
[1] On
5 September 2003 the pursuers
and the first defenders entered into a sole selling rights agreement ("SSRA")
in respect of Graham's Yard, The Gallowgate, Glasgow, on terms set out in a
standard form document bearing that date entitled "Confirmation of Sole Selling
Rights Agreement". In terms thereof the
first defenders agreed to appoint the pursuers as their agents with sole
selling rights over properties being developed at Graham's Yard. The pursuers were to have sole selling rights
for a minimum period of 12 weeks from the date of the agreement, and the
agreement was expressed to continue thereafter until the expiry of 28 days
written notice of termination given by either party to the other.
[2] The
main dispute in this action concerns the pursuers' entitlement to a fee by way
of commission on the sale. The terms in
the SSRA concerning the fee are contained in clauses 1 and 3. So far as material, these provide as follows:
"1. SOLE SELLING RIGHTS
THE VENDOR [the
defenders] will be liable to pay remuneration to THE AGENT [the pursuers], in
addition to any other costs or charges agreed, in each of the following
circumstances:
a. If unconditional missives for the sale
of the Property are concluded in the period during which THE AGENT has sole
selling rights, even if the purchaser was not found by THE AGENT but by another
agent or by any other person, including THE VENDOR,
or
b. If unconditional missives for the sale
of the Property are concluded after the expiry of the period during which THE
AGENT has sole selling rights but to a purchaser who was introduced to THE
VENDOR during that period or with whom THE AGENT had negotiations about the
property during that period.
3. SALE FEE
... The sale fee charged is based on the price
at which unconditional missives are concluded, and becomes due on conclusion of
unconditional missives but payable on date of entry or three months after
conclusion of unconditional missives, whichever is the earlier".
The fee was agreed, in a separate
letter of the same date, to be a base fee of 1.0% plus VAT. There was also provision for a time-related
bonus to be paid in addition to the base fee, but I am not concerned with that.
[3] On
4 May 2004 the pursuers and
the first and second defenders entered into a further written agreement ("the
May Agreement") in relation to the selling of the development at Graham's
Yard. On the first page it states:
"The following terms and
conditions are to be read in conjunction with the Sole Selling Rights Agreement
and time related fee proposals both signed on 5 September 2004 ..."
The reference to "2004" is a
mistake for "2003". The May Agreement is
in two parts. Pages 2 and 3 contain a
"Summary of Instructions" provided to the pursuers by the defenders. Page 4 is a document headed "Summary of
Conditions relating to the sale by [the pursuers] of the apartments at
'Graham's Yard' on behalf of [the defenders]".
[5] The
first two conditions set out in the Summary of Conditions provide as follows:
"1. The Sole Selling Rights Agreement and
the time related fee bonus arrangements both signed on 5 September 2003 form the basis of the contract
to sell.
2. On conclusion of missive [the pursuers]
will raise an invoice for the total fee including VAT. The sale fee will be due for payment within
28 days of the date of the invoice, subject to full planning permission
being granted. If planning permission
has not been granted by the foregoing date, payment of the full fee will become
due 14 days after the date the full planning permission is granted."
I shall refer to these as Conditions
1 and 2, to differentiate them from the Clauses of the SSRA.
[6] The
parties have agreed on Record the relevant background to the May
Agreement. An application had been made
for full planning permission for the development but, as at May 2004, had not
been granted. The defenders' solicitors
drafted a standard offer to purchase, which the parties intended would be used
by purchasers of flats at Graham's Yard.
This standard offer was provided to the pursuers for their use in
attempting to sell the flats. It
contained a clause (Clause 13) to the effect that the offer and acceptance
would be conditional upon the defenders obtaining planning permission for the
development in a form satisfactory to the would-be purchaser. In the event that the defenders did not
obtain planning permission, the contract would be at an end with no liability
due to or by either party. It is
admitted by the defenders on Record that when the parties entered into the May
Agreement, "it was within their contemplation that the missives that would
trigger the pursuers' entitlement to a sales fee would (or might) be
conditional upon the defenders obtaining detailed planning permission for the
development".
[7] The
parties are agreed that the May Agreement supplements or amends the SSRA; and
that, in consequence of their having signed the May Agreement, the second
defenders have become parties to the SSRA as supplemented or amended.
[8] On
6 August 2004 the defenders, through their agents, notified the pursuers that
they did not intend to retain the pursuers any longer in relation to the sale
of the development at Graham's Yard. It
is agreed that the effect of this was to bring the SSRA to an end either then
or 28 days thereafter. The precise
timing does not matter for present purposes.
There are issues of alleged breach which might give the defenders the
right to terminate there and then rather than on 28 days notice. It is not suggested, however, that the SSRA
came to an end before 6 August
2004. This is important
because it is, again, a matter of agreement that on 14 July 2004, within the currency of the SSRA, the
defenders concluded missives to sell all the properties at Graham's Yard to Dee
Investments Advisors Limited. The
missives contained a suspensive condition making them conditional upon the
grant of planning permission. That
condition was ultimately purified when planning permission was granted in about
December 2004.
[9] The
matter came before the court at debate.
The pursuers initially invited me to sustain their second plea-in-law, a
general plea to the relevancy of the defences, and to grant interim decree for
payment of the fee in the lesser of the two sums sought on Record, at the rate
agreed on 5 September 2003, leaving over a further question as to whether parties
had later agreed a higher rate of commission.
The defenders submitted that I should allow a proof before answer. By the end of the debate, parties were agreed
that I should simply answer the two questions which they had identified in
their adjusted Notes of Argument, and then put the matter out By Order. I propose to deal with these questions in
turn.
Question (1) - Did the admitted circumstances trigger a liability to
make payment of commission under the SSRA as amended?
[10] The question as formulated in the defenders' Note of Argument
was: in what circumstances are the pursuers entitled to payment under the
contracts? That, obviously, is the
question of construction at the heart of this dispute. However, for the purpose of debate, the
important question is whether the circumstances admitted on Record are
sufficient to trigger a liability to pay commission? If so, subject to the second question, the
pursuers are entitled to decree in some amount.
The pursuer avers that the missives arose from an introduction by them;
but this is not admitted by the defenders and will be a matter for proof should
a decision on this point become necessary.
However, it is admitted that the missives, which were conditional upon
planning permission being obtained, were concluded within the currency of the
SSRA. The pursuers contend that on a
proper construction of the SSRA, as amended, this fact alone is sufficient to
entitle them to commission at the agreed rate.
Submissions
[11] Mr Duncan, on behalf of the pursuers, submitted that, properly
understood in its context, the May Agreement amended the SSRA so as to add a
further "trigger" event entitling the pursuers to commission. That additional trigger event was the conclusion
of missives which were conditional upon the grant of planning commission. Whereas the SSRA, in its original form, only
entitled the pursuers to commission under Clause 1 a. and b. if unconditional
missives were concluded, the SSRA as amended entitled them to commission
whether the missives were unconditional or conditional upon the grant of
planning commission. In other words,
Clause 1 a. of the SSRA should be understood, in light of the amendments made
by the May Agreement, as though it read something like this: that the vendor
(the defenders) would be liable to pay remuneration to the agent (the pursuers)
"[if] missives
for the sale of the Property (whether
unconditional or conditional upon the grant of planning permission) are
concluded in the period during which THE AGENT has sole selling rights, even if
the purchaser was not found by THE AGENT but by another agent or by any other
person, including THE VENDOR ..." [emphasis added].
Since conditional missives were
concluded during the period when the pursuer had sole selling rights, it followed
that the pursuers were entitled to commission without proof of having effected
an introduction. The May Agreement was
not intended to supersede the SSRA. This
was made clear on the first page of the May Agreement which stated that the
terms of the May Agreement were to be read in conjunction with the SSRA, and in
Condition 1 of the Summary of Conditions which emphasised that the SSRA formed
the basis of the agreement. There is no
difficulty in reading the two documents together. Clause 3 of the SSRA drew a distinction
between the event upon the happening of which the fee became due (conclusion of
missives) and the date when the fee became payable (the earlier of the date of
entry or three months after conclusion of missives). Condition 2 of the Summary of Conditions in
the May Agreement drew a similar distinction: an invoice for the fee would be
raised (which must mean that the fee was due) upon conclusion of the
conditional or unconditional missives, but the fee would only be payable later,
the precise time depending on when planning permission was granted. The trigger event for the fee becoming due
was the conclusion of the conditional missives, not the later grant of planning
permission. As a matter of ordinary
language, the purification of a suspensive condition could not properly be
described as the "conclusion" of unconditional missives. As a matter of law, purification of a
condition had a retrospective effect: Murdoch
& Co. Ltd. v Greig 1889 16 R
396, per Lord President Inglis at 401.
Whilst this may not have been uppermost in the mind of the ordinary
businessman involved in such a transaction, it accorded with his reasonable
expectations. He would be unlikely to
assume that everything turned on when planning permission was granted, particularly
(though he did not suggest that this had happened in this case) since, on that
construction, it would be within the power of the defenders, if it suited them,
to delay the grant of planning permission and thereby, in certain
circumstances, avoid having to pay commission altogether.
[12] For the defenders, Mr Cullen QC first referred me to certain
passages in text books and authorities concerned with the payment of commission
to estate agents: see Chitty on Contract, 29th ed., vol.2, at
paras.39-140 and 39-142, Brian Cooper
& Co. v Fairview Estates
(Investments) Ltd. [1987] 1 EGLR 18, 19H-L, Midgeley Estates Ltd. v Hand
[1952] 2 QB 432, 435-6. These passages
emphasised the improbability of parties having agreed that an agent would be
entitled to commission without having introduced the purchasers or without the
introduction having resulted in a sale, and showed that clear words were needed
if parties were to be taken as having intended such a construction. He accepted that the SSRA had this effect in respect
of the conclusion of unconditional missives during the currency of the
agreement, but the pursuers were not entitled to payment under Clause 1 a. of
the SSRA because the missives entered into were not unconditional. He submitted that there was no sufficiently
clear wording in the case of conditional missives to achieve a like
result. The May Agreement introduced the
issue of conditional missives, but was not only about missives. It reflected a far more detailed approach to
the delineation of the agents' responsibilities for marketing and sale. By May 2004 it was no longer envisaged that
missives would be unconditional. They
would be conditional, and to this extent the May Agreement superseded the SSRA
so far as concerned commission arrangements.
Even if the SSRA remained in force, it did so only as regards
unconditional missives; where the missives were conditional, it was the May
Agreement that said what was to happen about the fee. The May Agreement said nothing about a fee
being earned despite the agents not having effected the introduction. In such circumstances the presumption was
that in order to establish their entitlement to commission the pursuers would
have to prove that they had effected the introduction that resulted in the
sale. This was a matter for proof. Under reference to Prenn v Simmonds [1971] 1
WLR 1381, Mr Cullen urged me to be cautious in proceeding to a concluded view
without hearing evidence as to the commercial purpose of the agreement. As an alternative submission, Mr Cullen
submitted that the trigger event for commission becoming due was the
purification of the suspensive condition in the missives on the grant of
planning permission. He submitted that
businessmen would not have had in mind the retrospective effect of
purification. Against the background of
the planning application having been made, it was likely that parties would
have looked to the grant of permission as the trigger.
[13] Mr Moynihan QC adopted Mr Duncan's submissions. In addition, he pointed out that the
defenders themselves had admitted on Record, in the passage which I have quoted
at the end of para.[6] above, that it was the conclusion of missives, albeit
conditional, that triggered the pursuers' entitlement to commission. Mr. Cullen responded that little could be
taken from this: it was a question of law, not fact, and the defenders'
position had been made clear in their Note of Arguments.
Discussion
[14] I was not persuaded that I put off deciding the point of
construction until I had heard evidence as to the commercial purpose. Had there been disputed averments as to the
matrix in which the agreements came to be made, such as might have had a
bearing upon the issue of construction, I would probably have accepted the
submission that I should not decide the construction point until I had heard
evidence on them. But in response to my
question on this aspect, Mr Cullen was unable to point to any relevant
averments of matrix (save for those on p.7 of the Record, which did not, in my
opinion, advance the matter). Nor did he
identify factual matters which, albeit not pled, could have had a bearing on
the question. In those circumstances it
seemed to me that there was nothing to be gained by my putting off the decision
on this question.
[15] The May Agreement has to be read as one with the SSRA. The SSRA entitles the pursuers to commission
if unconditional missives are concluded during the currency of the
agreement. I do not find that
particularly surprising in principle. If
agents commit themselves to the time and expenditure involved in marketing a
large development as sole agents, it is not unreasonable that they should want
to ensure that the client cannot, by doing his own deal, prevent them earning
some reward for their labours. The
client, for his part, may want to keep the option of selling to someone who was
not introduced by the agents; and may see no reason why he should pay any
commission to the agents if he succeeds in doing this. Neither position is unreasonable. Which approach prevails will not doubt depend
on the strength of the parties' bargaining positions at the time they enter
into the agreement. I do not consider
that the question of construction of an agreement of this type should be
approached on the basis of a presumption that parties are likely to have
intended commission only to be payable if the agents effected the introduction
that led to the sale, and that clear words are needed to displace such a
presumption. It is better, in my
opinion, simply to look to the words the parties have used in making their
bargain and the context in which they have used them.
[16] The starting point for any consideration of what the parties
must have intended in the May Agreement is to recognise that they were already
in contractual relations concerning the marketing and sale of the flats at
Graham's Yard. Under Clause 1 a. of the
SSRA, the pursuers were entitled to a fee at the agreed rate if missives were
concluded during the currency of the agreement whether or not they had effected
the introduction. Even if it were right
to approach the matter on the basis of an initial presumption that parties
would not have intended such a result, the wording of Clause 1 a. is
sufficiently clear to displace it. Why
should one assume that, having agreed one thing in the SSRA, the parties
intended to achieve a different result in the May Agreement?
[17] The material change of circumstances necessitating the May
Agreement was the realisation that any missives concluded were almost certainly
going to be conditional upon the grant of planning permission. Missives were unlikely ever to be concluded
in unconditional terms. Under the SSRA
as it stood in its unamended form, therefore, the pursuers would never have
become entitled to commission. However, on
that basis they would have no incentive to continue marketing the
property. Accordingly, I consider that
the proper interpretation of what occurred is that the parties agreed to extend
the circumstances in which the pursuers would earn commission to include the
case where (a) the missives concluded are conditional upon the grant of
planning permission and (b) planning permission is subsequently granted. This could have been achieved by amending the
wording of the SSRA itself. The parties
chose instead to achieve it by Condition 2 of the Summary of Conditions in the
May Agreement. Condition 2 does not in
terms say that the pursuers will be paid a commission in such
circumstances. Rather it assumes it, and
deals with the mechanics of invoicing and payment. But nothing turns on this: Condition 2 makes
no sense if it does not have this meaning.
[18] Even so, there were still two possible approaches to the
question of entitlement to commission in such circumstances. One way would be to provide that the commission
became due upon purification of the suspensive condition, i.e. upon the grant
of planning permission. This would make
the grant of planning permission the event that triggers the pursuers'
entitlement to commission. The other way
would be to provide that commission became due upon the conclusion of
conditional missives, but payable only if (and after) planning permission was
granted. Condition 2 of the Summary of
Conditions reflects the second of these alternatives. "On conclusion of missive" - which clearly
means conditional missives - the pursuers "will raise an invoice for the total
fee". That must mean that commission is
then due, otherwise an invoice could not be raised. It is the conclusion of missives, therefore,
which triggers the entitlement. The
remainder of Condition 2 links the time for payment to the grant of planning
permission.
[19] Mr Cullen argues that, even if this is so, it is wrong to seek
to put the new trigger event into the framework of the SSRA. He submits that the May Agreement should be
viewed as adding an autonomous provision to govern in the event that the
missives concluded were conditional upon the grant of planning permission. That autonomous provision says nothing about
the pursuers being entitled to commission in circumstances where they had no
involvement in the sale, and should not be read in this way. I cannot accept that argument. Under the SSRA, the pursuers' entitlement to
commission depended upon when the missives were concluded. If they were concluded during the currency of
the agreement, the pursuers could claim commission even if they had had no
involvement in procuring the sale. But
if they were concluded after the agreement had ended, the pursuers could only
claim commission if they could show that they had been involved. I see no reason to suppose that the parties
did not intend the same scheme to apply in the case of conditional
missives. Nothing in the circumstances
leading to the May Agreement suggests that there had been a change of heart in
this respect. Nor is there anything in
the language used in the May Agreement to suggest a different intention. It is important to recognise that by May 2004
the parties thought it unlikely that unconditional missives would be
concluded. They saw conditional missives
as the likely trigger event. On Mr
Cullen's argument, the SSRA would remain as the source of the obligation to pay
commission in the unlikely event of unconditional missives, whereas the May
Agreement would apply if, as expected, the missives were conditional. In my opinion, such an argument fails to give
any adequate meaning to the statement in Condition 1 (in addition to the
reference on the first page) that the SSRA forms the basis of the agreement. It cannot sensibly be said to form the basis
of the agreement between the parties if it has no application to the very
circumstances which the parties envisage will occur. On Mr Cullen's construction, the main parts
of the SSRA are, in reality, superseded by the May Agreement. This, in my opinion, is contrary to the
expressed intention of the parties.
[20] I therefore find in favour of the pursuers on this first point.
Question (2) - Have the defenders
relevantly averred a breach of contract by the pursuers?
[21] The defenders aver in Answer 7 that the pursuers were in
material breach of contract "in that they failed to market the property in the
manner agreed in the Summary of Instructions".
In the circumstances, so the defenders aver, the pursuers are not
entitled to a sale fee.
[22] The issue between the parties, as defined by the defenders in
their Note of Argument is whether the pursuers were in breach of contract such
as to preclude them from claiming payment.
The debate before me was on the pursuers' plea-in-law to the relevancy
of the defenders' averments. It is
accepted by the pursuers that if the defenders have relevantly averred a breach
of contract, issues of whether such breach, if proved, was material will
require to be answered after proof along with a number of other questions. The only question at this stage is whether
the defenders have relevantly averred a breach of contract in relation to the
marketing and sale of the flats.
[23] The Summary of Instructions forms pages 2 and 3 of the May
Agreement. The relevant provisions are
points 1-4 and 8, which provide as follows:
"1. The development consists of 257
apartments with private parking.
2. Apartments will be
grouped together in 31 lots of 8 apartments & 1 lot of 9 apartments
and sold to investors.
3. Only one group of 8
properties (or 9 properties) may be sold to any one investor to ensure the risk
associated with non completion is minimised.
4. Authorisation to act
outwith the conditions in point three above must be obtained from [the
defenders].
...
8. Investors will complete a
reservation form and agree to the conditions attached to the acquisition (refer to conditions of purchase document)."
The averments of breach focus
particularly on points 3 and 4.
[24] In Answer 3 the defenders aver that it was a material term of
the amended contract "that the pursuers would market the subjects in accordance
with the Summary of Instructions". They
go on to say this:
"The Summary of
Instructions provided that the apartments were to be sold in lots to
investors. There were to be 31 lots of 8
apartments and 1 lot of 9 apartments. A
maximum of one lot was to be sold to any one investor. This was a requirement insisted upon by the
defenders' bank, which was funding the development. The defenders repeatedly emphasised the
importance of this requirement to the pursuers.
..."
The
averments of breach are set out in Answer 6:
"Explained and averred that
the letter dated 6 August 2004 ... terminated any contractual relationship
between the parties with immediate effect.
It had become clear by this time that the pursuers had no intention of
implementing the defenders' instructions to sell the apartments to investors in
single lots as they had been instructed to do.
On or about 15 June 2004
the pursuers had provided a list of intended investors to the defenders. The list showed that, contrary to the
defenders' instructions, the pursuers had procured investors who intended to
purchase more than one lot each. The list
also showed what appeared to be a number of shell companies as investors. It showed that some company names remained to
be confirmed. The defenders' bank would
not have been satisfied with sales of more than one lot to any single investor
or with sales to shell companies."
The
defenders go on to explain the materiality of the alleged breach. They say that the bank would have been
concerned about the possibility that shell companies were being used to
disguise the identity of investors who were truly purchasing more than one lot;
and they say that the sale arrangements proposed by the pursuers would have put
the funding of the project in jeopardy.
Submissions
[25] For the pursuers, Mr Duncan submitted that there was no express
term of the contract forbidding the pursuers marketing the property in such a
way that investors would be wholly precluded from purchasing more than one
lot. Nor could there be an implied term
to that effect, since it would be inconsistent with terms set out in the
Summary of Instructions contained in the May Agreement; c.f. James Cummings v Charles Connell & Company (Shipbuilders) Ltd. 1968 SC 305,
311. It was expressly contemplated in
Point 4 of the Summary of Instructions that authorisation might be given by the
defenders for the sale of more than one group of properties to a single
investor. It was unrealistic to suppose
that the pursuers would ask for such authorisation in the abstract, still less
that the defenders would be able to give the question proper consideration
unless and until the identity and means of the particular investor were known. The term which the defenders needed to
establish would prevent the pursuers ever getting to the position of being able
to ask for authorisation. Nor would such
an implication, even if it were not inconsistent with the express terms, meet
the well-known tests of necessity or obviousness.
[26] Mr Cullen, for the defenders, submitted that no implication was
required. The Summary of Instructions
was quite clear as to what the pursuers were required to do. They were obliged to market the properties so
as to attract investors who were solely interested in acquiring a single
unit. The defenders averred that it was
clear from the pursuers' letter that they were intending to sell the properties
otherwise than in the manner required by point 3 of the Summary of Instructions. The only question at this stage was whether
the claim for breach must necessarily fail.
He submitted that there should be a proof before answer on this issue.
[27] Developing the argument that the pursuers must be allowed to
get to the point at which they could ask the defenders for authorisation, Mr.
Moynihan emphasised that would-be purchasers were required to submit their
offers in a document in a prescribed form which admitted of no alteration or
modification. Further, they were sent a
copy of a document headed "Conditions of Purchase" which in terms stated that
only one lot would be sold to any one investor unless permission was granted by
the defenders. The commercially sensible
approach was that the defenders would not make a decision in advance, but would
want to wait to see the whole range on interested investors. The question, he submitted, was whether there
was a term of which it could be said that the pursuers were in breach by reason
of their acts as set out in Answer 6.
The pursuers made no averments there about the marketing carried out by
the pursuers as opposed to the result which they achieved. It was not a breach to put forward a list of
potential purchasers. He pointed out
that the defenders had in fact concluded missives for all the flats with a
single investor.
[28] In his second speech, Mr Cullen took issue with the stress
placed by the pursuers on marketing.
Point 3 of the Summary of Instructions focused on sale, not
marketing. The obligation on the
pursuers was to procure a sale. By June
2004 they were not in a position to achieve that. By that time, therefore, the defenders could
say that the pursuers had not performed their obligations in line with what was
expected of them. He was not submitting
that the pursuers were under an absolute obligation to succeed, but the
defenders were entitled to draw the inference that the pursuers had not acted
as they were instructed to act.
Discussion
[29] In my opinion the defenders have not pled a relevant case of
breach. It seemed to me that the
defenders' submissions tended to confuse the role of the pursuers. Their role was not to sell the flats but to
market them, to use their best endeavours to find investors willing to purchase
at a price and on terms acceptable to the defenders. This is (possibly) recognised in the averment
of duty in Answer 3, though it is not said what is meant by marketing the
subjects "in accordance with the Summary of Instructions". It is also (possibly) recognised in the brief
averment of breach in Answer 7, though that averment does not identify what the
pursuers are said to have done wrong by way of marketing. For the detailed averments of breach one
turns to Answer 6. But here, so it seems
to me, the defenders' case runs into difficulties. It is averred that it became apparent to the
defenders that the pursuers did not intend "to sell the apartments to investors
in single lots". Further, it is averred
that the pursuers "had procured investors who intended to purchase more than
one lot each". Both averments are
irrelevant: the former, because it is the defenders, not the pursuers, who
sell; and the latter, because there is no obligation on the pursuers to achieve
a particular result. Neither averment
addresses the central breach issues of what the pursuers did by way of
marketing which they should not have done and what the pursuers did not do by
way of marketing which they ought to have done.
[30] Stepping back from the detailed averments, it seems to me that
there is force in the pursuers' argument that the terms of point 4 of the
Summary of Instructions expressly leave it open to the pursuers to market the
property in such a way that does not preclude the possibility of them seeking
authorisation from the defenders for more than one lot to be sold to a single
investor. In those circumstances, an
averment that the pursuers were in breach because they provided a list of
intending purchasers who wanted to purchase more than one lot each is
fundamentally irrelevant.
[31] I should add that in addition to the attack on relevancy, the
pursuers attacked the specification of the averment in Answer 3 that "the
defenders repeatedly emphasised the importance of this requirement to the
pursuers". Mr Cullen accepted that
further specification required to be given and indicated a willingness to
amend. In those circumstances, had I
found that the defenders had otherwise pled a relevant case of breach, I would
have required the defenders to give further specification, which failing I
would have deleted this sentence.
Disposal
[32] As agreed between the parties, having answered both questions
in favour of the pursuers, I shall put the case out By Order for discussion on
further procedure.
