De Silva v Dindial's Hardware: Privy Council holds disclosed probate delay did not excuse failure to serve notice to complete

The Privy Council has dismissed an appeal by Dindial's Hardware Limited. The Board held that the company lost its TT$1.3 million deposit by walking away from a land purchase in Trinidad and Tobago without first serving a notice making time of the essence.

In De Silva v Dindial's Hardware Ltd [2026] UKPC 39, Lord Briggs gave the judgement of the Board. The case turned on two conveyancing principles; Trinidadian law was accepted as mirroring English law.

A chain of contracts dependent on probate

In October 2016 Mrs de Silva agreed to buy a freehold property in Maraval for US$1.5 million from the executor of an estate. That contract recorded that probate was still awaited. It set completion for on or before 28 February 2017 and expressly stated that time was not of the essence. A month later she agreed to sell the property on to Dindial for TT$13 million, with a 10 per cent deposit and the same completion date. By exchange at the latest, Dindial had been given a copy of the earlier contract.

By the completion date, probate had not been granted, the vendor had not supplied tax and water clearance documents, and Dindial had decided not to proceed. Without serving a completion notice, it demanded the return of its deposit. Mrs de Silva treated that demand as a repudiation and forfeited the deposit.

Boodoosingh J held that a fundamental defect in title allowed termination without notice. The Court of Appeal reversed him.

Completion notice versus no title

The Board called the competing rules the "completion notice principle" and the "no title principle". The first, supported by Stickney v Keeble [1915] AC 386, was not in dispute. Time was not of the essence of the onward sale. The contract said nothing on the point, and the head contract formed part of its context. In the Board's view, it would have been commercially irrational for the onward sale to make time essential.

The no title principle comes from Forrer v Nash (1865) 35 Beav 167 and was developed in Pips (Leisure Productions) Ltd v Walton (1980) 43 P & CR 415. It allows a purchaser to treat a contract as at an end on discovering that the vendor has no title and no enforceable right to acquire one. The Board noted that, if the principle applies at common law, it must cover forfeiture of a deposit as well as damages. Its rationale is the vendor's duty to disclose latent defects in title. A purchaser who knew from the outset that the vendor's ability to convey depended on an external event can hardly rely on that event to terminate, as Wylson v Dunn (1887) 34 Ch D 569 indicates.

The principle also applies only where the vendor has a mere hope of acquiring title. Mrs de Silva held a contractual right to require a conveyance to herself or to her nominee, and that right did not depend on anyone exercising a discretion. Only the timing was uncertain, a question of "when" rather than "whether", and that uncertainty had been fully disclosed.

New arguments refused

The Board refused to consider three points raised for the first time on appeal: the vendor's alleged difficulty in converting currency to fund completion, the effect of the grant being letters of administration rather than probate, and equitable relief from forfeiture. None had been pleaded, and entertaining them would have been contrary to the Board's settled practice.

Terrence Bharath SC and Reza Ramjohn appeared for the appellant. Seenath Jairam SC, Jerome Rajcoomar and Shantal Jairam appeared for the respondent.