Coverage has been given in the press (see page 43, Estates Gazette, 4 September, and see also Christian Metcalfe’s EG Property Law Blog) to a recent decision of the High Court of Justice in Northern Ireland (Titanic Quarter Ltd v Rowe [2010] NICh 14 (26 August 2010)) in which the High Court sank a residential developer’s claim for specific performance of an off-plan purchase contract, where the buyer, a victim of the recession, had lost his job and was therefore simply unable to proceed with the purchase. Many developers have been seeking specific performance of residential purchase contracts in the hope of finding ways to force buyers to complete at originally agreed prices. However, as we have seen recently in a different context (see Frasers Islington Ltd v The Hanover Trustee Company Ltd & Ors [2010] EWHC 1514 (Ch)) the courts will remind us that specific performance of a contract is a discretionary remedy, and there is no right to a decree. Claimants may have to content themselves with an award of damages instead. In the current case, the judge said that he was “satisfied that impossibility of performance is a ground in law for refusing the remedy of specific performance.” One can see similar defences being raised in the courts of England and Wales. After all, Equity does not require an idle gesture.
Property PSL