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Cases John McGhee

Greene King PLC v Quisine Restaurants Ltd (2012)

Judgment Date: 24 May 2012

A clause under a licence to assign an underlease requiring the tenant to use all reasonable endeavours to give notice to the guarantor of the undertenant each time the rents were more than two months in arrears was not a condition precedent of the liability under the guarantee and the failure of the tenant to give such notice did not release the guarantor.

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Scottish Widows Fund & Life Assurance Society v BGC International (2012)

Judgment Date: 09 May 2012

A judge had erred in his construction of a clause in a sub-sub-underlease, which was inconsistent with the relevant lease when read with the supplemental agreement. Statements made in the course of the pre-contractual negotiations were no more than statements of the negotiating stance at that point in time, and could not be relied on as evidencing the parties' objective aim in completing the transaction.

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Members
John McGhee QC

Practice areas
Real Estate

CIP Property (AIPT) Ltd v Transport for London, London Undergoround Ltd, Derwent Valley Central Ltd

Judgment Date: 25 Jan 2012

Claims for a negative declaration and mandatory injunction, arising from the alleged infringement of an ancient right to light for property overlooking a site on which development was proposed following the completion of the Crossrail project, had no prospect of success. The action was premature and served no useful purpose since the proposed development lacked planning permission and could not take place for at least five years.

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Members
John McGhee QC

Practice areas
Real Estate

Persimmon Homes Ltd v Woodford Land Ltd (2011)

Judgment Date: 28 Nov 2011

The parties had intended the court to decide questions of construction of the terms of an option agreement upon which a rectification claim depended, despite the apparent width of a dispute resolution clause in the agreement which provided for any disagreement to be referred for determination by an expert.

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Re Thames Valley Holdings Ltd (2011)

Judgment Date: 16 Aug 2011

The Upper Tribunal (Lands Chamber) determined that a freeholder's application for the modification of restrictive covenants which impeded its proposed housing development should not be struck out as an abuse of process. Although similar applications had been refused in previous years, the freeholder had a realistic prospect of showing that the circumstances had changed to an extent that might lead the tribunal to reach a different decision.

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Members
John McGhee QC

Practice areas
Real Estate

Amble Assets v Longbenton Foods (2011)

Judgment Date: 21 Jul 2011

Where there was a provision in an agreement to purchase a property requiring forfeiture of monies already paid by way of part-payment on the occurrence of the forfeiting event, relief from forfeiture might be available in equity as a matter of the court's discretion if, and to the extent that, it would be unconscionable to allow the forfeiture to take effect.

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Members
John McGhee QC

Practice areas
Real Estate

Nigel Alliance, Cringle Corporation Ltd v Yousef Tishbi, Realty Estates Ltd (2011)

Judgment Date: 20 Apr 2011

It was clear from the words and context of a consent order that the effect of the compromise was that the parties were to keep the money that they had already been paid and drop any claims against each other.

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Woodford Land Ltd v Persimmon Homes Ltd (2011)

Judgment Date: 15 Apr 2011

The determination of an expert appointed under an option agreement construing the agreement in favour of the purchaser was contractually binding between the parties but not binding on the court as it was not a judicial decision. A concession by the vendor on the construction issue, made before bringing a rectification claim, left it without a remedy when the court construed the agreement in its favour, as the rectification claim had to fail.

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Scottish Widows Fund & Life Assurance Society v BGC International (2011)

Judgment Date: 31 Mar 2011

The court construed a lease in a way that the court considered a reasonable person would have understood the parties to have meant by the words they actually used.

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Members
John McGhee QC

Practice areas
Real Estate

Tradegro (UK) Ltd & Wigmore Street Investments Ltd v Charles Price (2011)

Judgment Date: 16 Mar 2011

The court construed an undertaking whereby the solicitors of a company held money another party had paid under a judgment, after the company had become insolvent and another judgment against the company had been given in the other party's favour.

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Progress Property Co Ltd v Moorgrath Group Ltd (2010)

Judgment Date: 08 Dec 2010

When considering whether a transaction constituted an unlawful distribution of capital by a company, the proper approach was to inquire into the true purpose and substance of the impugned transaction and to conduct a realistic assessment of all the relevant facts, not simply an isolated retrospective valuation exercise.

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Tradegro (UK) Ltd v Wigmore Street Investments Ltd (2010)

Judgment Date: 07 Jul 2010

In interpleader proceedings it was determined that the obvious intention of the parties was that monies held pursuant to an undertaking in the client account of a firm of solicitors were held by the solicitors as trustee, to pay the monies out in accordance with the terms of the undertaking. Further, the undertaking constituted a solicitor's undertaking to hold the monies and apply them in accordance with that undertaking.

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Aviva Life & Pensions UK Ltd v Strand Street Properties Ltd (2010)

Judgment Date: 29 Apr 2010

The judge had been entitled to find that the claimant and defendant had agreed to make an equal contribution to professional fees incurred in relation to a commercial development.

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UK Housing Alliance (North West) Ltd v Francis (2010)

Judgment Date: 24 Feb 2010

A provision in a sale and leaseback contract entitling the landlord buyer to retain 30 per cent of the purchase price if it terminated the tenancy pursuant to any right to do so under the tenancy agreement was not an unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 reg.5.

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City & General (Investment) Ltd v Razama (2009)

Judgment Date: 02 Dec 2009

A property seller had obtained the consent required under a restrictive covenant restricting the development of land without the approval of an adjoining landowner, notwithstanding that the consent obtained was qualified. The qualification was narrower than the restrictions imposed by the covenant, showing that the consent had been given in principle.

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Members
John McGhee QC

Practice areas
Real Estate

Mourant Property Trust Ltd v Fusion Electronic (UK) Ltd (2009)

Judgment Date: 30 Jul 2009

A break clause had not been validly exercised by a commercial tenant as the condition precedents to determine the lease had not been strictly complied with; in particular dilapidations and repairs remained outstanding which amounted to material breaches.

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Members
John McGhee QC

Practice areas
Real Estate

London Development Agency v Mehmet Nidai (2009)

Judgment Date: 14 Jul 2009

A company had no title to grant leases in respect of two shops because it only had a licence in respect of the land forming the title to the shops and so the owner of the land was entitled to possession of the two shop units and mesne profits.

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Members
John McGhee QC

Practice areas
Real Estate

Progress Property Co Ltd v Moorgarth Group Ltd (2009)

Judgment Date: 26 Jun 2009

There had been no knowledge or intention that the sale of shares by one company to another had been below their market value and no reason to doubt the genuineness of the transaction as a commercial sale, even though the sale price had been calculated on the basis of a misunderstanding by all concerned, the share sale had been genuine, lawful and intra vires, even if it was at an undervalue.

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Colour Quest v Total Downstream [2009]

Judgment Date: 20 Mar 2009

As a matter of fact companies in the Total group had control of tank filling operations at the part of the Buncefield oil storage depot where an explosion occurred and were vicariously liable for the careless tank filling activities of their employees. One of the causes of the explosion was the failure to promulgate an adequate system to prevent overfilling of a tank.

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Menolly v Cerep Sarl (2009)

Judgment Date: 18 Mar 2009

On the true interpretation of a building contract the provision of "level access" to retail units was included in the works as defined, and a certificate of practical completion given on the basis that such provision was not within the works was invalid; it was not within the authority of the employer's representative to certify practical completion on the basis of his own view of the meaning of the building contract.

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