Summary

A provision in a lease, by which the lessor covenanted to erect a permanent office building "in accordance with the specification contained in a letter of even date...annexed hereto", was void for uncertainty where no such letter was in fact annexed to the lease.

Facts

Appeal by Mr and Mrs Forrester ('the lessors') from the decision of HH Judge Holden, by which he gave judgment for the claimant ('UYCF'). The learned judge awarded damages to be assessed in lieu of specific performance in respect of the breach by the lessors of a covenant to erect an office building pursuant to clause 3(2) of a lease dated 2 May 1992 made between Mr Forrester (as the then sole owner of the freehold) and UYCF as tenant. The judge also dismissed the lessors' counterclaim for, inter alia, a declaration that clause 3(2) was void for uncertainty. By clause 3(2) the lessors covenanted "to erect in the position shown edged blue on the plan herewith a permanent office building in accordance with the specification contained in a letter of even date and signed by the parties a copy of which is annexed hereto..." The plan attached to the lease showed an area of open ground edged blue which bore the designation "new offices". However, no signed, or any, letter of specification was annexed to the lease, and the judge held that none had ever existed. In due course UYCF called upon the lessors to comply with the covenant. Having rejected the lessors' case that clause 3(2) had been included as the result of a mistake, or as the result of deliberate collusion between UYCF and the solicitors acting for both parties, the judge held that clause 3(2) was sufficiently certain to be enforceable, since the nature and extent of the building would be dictated by a combination of the needs of the tenant and planning requirements.

Held

Although the court would only hold a contractual provision void for uncertainty as a matter of last resort, it was clear that the parties had intended that the new building should be the subject of a written specification agreed between them. The terms of that specification were not solely at the discretion of the lessors, but would have been the subject of negotiation between the parties. It was not feasible for the court to "fill the gap" or write the parties' bargain for them.

Appeal allowed. Action dismissed. Judgment for the lessors on the counterclaim.