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CA 005/2013 (1) Kenneth David Rohan (2) Andrew James Mostyn Pugh (3) Michelle Gemma Mostyn Pugh (4) Stuart James Cox v Daman Real Estate Capital Partners Limited

CA 005/2013 (1) Kenneth David Rohan (2) Andrew James Mostyn Pugh (3) Michelle Gemma Mostyn Pugh (4) Stuart James Cox v Daman Real Estate Capital Partners Limited

April 24, 2014


Claim No: CA 005/2013













UPON reviewing the Appellant’s Application Notice CA-006-2013/1 dated 13 March 2014 and the supporting documents for permission to reopen the appeal;

AND UPON reviewing the Respondents’ submissions and the parties’ joint memorandum dated 17 April 2014 response to the Application;


1. Permission to reopen the appeal be granted.
2. Costs of the application be in the disposal of the Court of Appeal.


1. This is an application by the Appellant, Daman Real Estate Capital Partners Limited, for permission to reopen the appeal. Judgment in the appeal was given on 11 February 2014, together with judgment in the Appellant’s appeal in the related case Beydoun v Daman Real Estate Capital Partners Limited (CFI032/2012: CA006/2013: “the Beydoun case”). This application was filed by the Appellant on 12 March 2014, three weeks after it filed an application to reopen the appeal in the Beydoun case. These reasons should be read together with and in the light of my judgment of 26 March 2014 on that application, granting permission to reopen the appeal.
2. I directed service of the application on the Respondents, Mr Kenneth Rohan, Mr and Mrs Andrew and Michelle Pugh and Mr Stuart Cox, and that they be made aware of the judgment of 26 March 2014. I have had the benefit of their submissions in response to those of the Appellant. I also requested a joint memorandum providing any references to the transcript of the appeal hearing which the parties considered relevant. A memorandum was supplied and I have had regard to the transcript, but the Appellant’s purported references were little more than further submissions.
3. The Respondents purchased one or more residential apartments in the Appellant’s property development, under SPAs with relevantly the same provisions as those in the Beydoun case. As in that case, the central issue was whether they had validly terminated the SPAs. They had given thirty days’ notice of termination by letters of 6 October 2011 (Mr Rohan and Mr and Mrs Pugh) and 22 June 2011 (Mr Cox), and again the focus at the trial was on the Appellant’s letters of 28 June 2009 and 25 November 2010 for their effect in extending the ACD to a date less than twelve months before the dates of those letters.
4. In a judgment given prior to his judgment in the Beydoun case the trial judge, Deputy Chief Justice Sir Anthony Colman, held that neither of the Appellant’s letters was effective to extend the ACD, and also that the letter of 25 November 2010 was sent “too late to comply with Clause 12.1” and was not effective because sent by email. Thus he held that the SPAs had been validly terminated by the Respondents. The trial judge went on to “briefly outline” his conclusions on whether delay in completion was caused by events of Force Majeure. The Appellant had relied on three lines of evidence; one the Engineer’s allowance of extensions of time to the contractor, which it said left disallowed delays the fault of the contractor and thus beyond the Appellant’s reasonable control; another the evidence of its project manager; and the third the evidence of an expert witness. The trial judge explained why he was left in doubt as to the weight which could be attached to the Engineer’s determinations “as evidence of the precise extent of Force Majeure net delay” and his conclusion that he “would… not have held in the absence of further evidence that [the Appellant] was entitled to claim as against [the Respondents] the period of extension time relied upon in its two Clause 12.1 notices”.
5. The appeal was heard together with the appeal in the Beydoun case. The holding that neither of the Appellant’s letters was an effective exercise of the right in Clause 4.1 of the SPA extended to it, as did the holding that the extension of the ACD by reason of Force Majeure did not depend on the content of any notice or on any notice at all. And the dispositive paragraph in the reasons of the Deputy Chief Justice also applied, relevantly that the Appellant “is not entitled to rely on the letters of 28 June 2009 or 25 November 2010 as a defence to the claims in these proceedings”.
6. The basis for the application was again that the reasoning of the Court of Appeal should have lead to allowing the appeal. The Appellant’s arguments again had included that notice was not a condition precedent to extension pursuant to Clause 12.1. As in the appeal in the Beydoun case, the step in the reasons of the Deputy Chief Justice left the Appellant’s case that it was entitled to extension of the ACD regardless of any notice without full consideration, and in that respect not dealt with. In their skeleton argument the Respondents had taken the point that the Appellant should not be permitted to depart from its case at trial, but no ruling to that effect is expressed in the Court’s reasons.
7. There is a difference, however, from the appeal in the Beydoun case. As I have described, the trial judge was not satisfied that the Appellant had proved events of Force Majeure entitling it to the claimed extension of the ACD. With a qualification, if that stands it would be pointless to allow the appeal to be reopened: the qualification being that extension less than the full claimed extension could be sufficient to bring the ACD within twelve months before the dates of the termination letters. And it is to be in noted that, unlike in the Beydoun case, the Engineer’s extension of time determinations were not accepted by the respondents as a basis for arriving at a period of contractor delay. It cannot be said that the trial judge’s reasons supported the requisite extension(s) of the ACD: quite the reverse.
8. While there is that difference, the trial judge’s conclusion concerning Force Majeure delay was challenged by the Appellant in the appeal. It was argued that the Engineer’s determinations provided a proper basis for finding Force Majeure delay and that the trial judge’s reasons for doubting their weight were unsound, and that there was other evidence to support the Appellant’s case to which the trial judge had not referred; and it was suggested that the trial judge had wrongly asked whether the entire delay the subject of the Appellant’s letters had been proven, when the correct question was whether sufficient delay to extend the ACD to a date or dates less than twelve months prior to the dates of the termination letters had been proven. In this respect also, a necessary corollary to notice not being a condition precedent to extension pursuant to Clause 12.1, the Appellant’s case on appeal was not fully considered or dealt with.
9. The Respondents submitted that it is to be inferred that the Court of Appeal accepted their submission that it could not substitute a different finding as to proof of Force Majeure delay from that of the trial judge, referring to a section of transcript of the appeal hearing. I do not think that the Court’s reasons permit such an inference, and the transcript does not do the work required. Perhaps with more force, they submitted to the effect that the challenge to the trial judge’s conclusion as to proof of Force Majeure delay could not succeed, saying in particular (and referring to McGraddie v McGraddie (2013) UKSC 58; (2013) 1 WLR 2477 at [1]–[6]) that the Court of Appeal did not hear or see the factual witnesses or the delay experts and was not in a position to substitute different findings of fact or different evaluative judgments. They put other submissions to the effect that the trial judge was correct in his conclusion.
10. However, the trial judge’s conclusion by no means rested upon hearing and seeing witnesses, and is open to appellate review. The Appellant may have a difficult task, and in regard to real injustice (RDC 44.180(1)) its case may not be as substantial as in the application to reopen the appeal in the Beydoun case. But I should not too readily refuse permission to reopen the appeal because of difficulty in the Appellant’s case, when the basis for the reopening includes that its challenge concerning proof of Force Majeure delay also has not been dealt with. The Appellant was entitled to have the Court of Appeal determine that challenge, and pass upon the arguments for and against the trial judge’s conclusion and upon substituted appellate fact finding. Leave to appeal must have been granted, and when for no fault of the Appellant that has not occurred, my opinion as a single judge should not be put in place of that of the Court of Appeal unless I am satisfied that the challenge should not proceed. I am not so satisfied.
11. I therefore consider that there has been undermining of the integrity of the litigation process as in the Beydoun case, and that there would be real injustice if the Appellant were unable to reopen the appeal — at the least, it has not had full determination by the Court of Appeal of its case on appeal. In my view, the requirements of RDC 44.180 are met and permission to reopen the appeal should be granted.

Issued by:
Mark Beer
Date of issue: 24 April 2014
At: 10am


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