Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd & Anor [2009] EWCA Civ 1108 (22 October 2009)

Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd & Anor [2009] EWCA Civ 1108 (22 October 2009)

Clause 14A.5 refers to anticipated, not incurred, costs for works required by approvals; the price adjustment mechanism under clause 7A is final and binding once agreed or determined; RMC was in breach of clause 12.2 for not performing remediation works, but Persimmon did not waive RMC's obligation nor fail to mitigate loss; damages are limited to the notional cost to RMC of performing the works.

Citation
[2009] EWCA Civ 1108
Parties
Appellant / Claimant: Persimmon Homes (South Coast) Limited; Respondent / Defendant: Hall Aggregates (South Coast) Limited; Respondent / Defendant: Cemex UK Properties Limited
Jurisdiction
England and Wales
Judgment Date
22 October 2009
Procedural Posture
Civil Appeal / Court of Appeal (civil Division) Judgment on Appeal and Cross Appeal From High Court (queen's Bench Division)
Outcome
Appeal and cross-appeal dismissed
Legal Topics
Construction of Contracts, Damages for Breach of Contract, Waiver and Estoppel, Mitigation of Loss, Land Sale Agreements
Contract Law Property Law Construction of Contracts Damages for Breach of Contract Waiver and Estoppel Mitigation of Loss Land Sale Agreements

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Parties

Persimmon Homes (South Coast) Limited

Appellant / Claimant

Hall Aggregates (South Coast) Limited

Respondent / Defendant

Cemex UK Properties Limited

Respondent / Defendant

Procedural Posture

Civil Appeal / Court of Appeal (civil Division) Judgment on Appeal and Cross Appeal From High Court (queen's Bench Division)

Legal Issues

  1. 1 Whether clause 14A.5 of the sale agreement entitles Persimmon to a rebate based on actual incurred costs for certain works or only on anticipated/estimated costs; whether RMC was in breach of clause 12.2 for not carrying out remediation works; whether Persimmon waived RMC's obligation or failed to mitigate loss.

Ratio Decidendi

Clause 14A.5 refers to anticipated, not incurred, costs for works required by approvals; the price adjustment mechanism under clause 7A is final and binding once agreed or determined; RMC was in breach of clause 12.2 for not performing remediation works, but Persimmon did not waive RMC's obligation nor fail to mitigate loss; damages are limited to the notional cost to RMC of performing the works.

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • Persimmon's appeal dismissed; clause 14A.5 does not entitle to rebate based on actual incurred costs.
  • RMC's cross-appeal dismissed; RMC liable for not performing remediation works under clause 12.2; damages limited to notional cost of RMC's performance.