Praetor Investments 5 v Transport House Developments: seller in sub-sale not ready, willing and able to complete

A seller who served notices to complete on an auction buyer was itself in repudiatory breach, because completing would have put it in breach of the contract under which it was acquiring the land in the first place.

In Praetor Investments 5 Ltd v Transport House Developments Ltd and Chhaya [2026] EWHC 1724 (Ch), handed down on 10 July 2026, Deputy Master Dew granted summary judgement to the buyer and its guarantor, dismissed the seller's claims and ordered repayment of the deposits with interest.

The overage that nobody mentioned

Praetor was not the registered proprietor of either plot. It held a contract to purchase them, known as the Top Contract, under which it had covenanted to execute a deed of overage. That deed obliged Praetor to procure that any disposee executed a deed of covenant with the head seller, and to enter a restriction on the title.

Transport House signed the auction contracts on 14 October 2025, the day before the auction, with the second defendant as guarantor. The following morning the guarantor emailed to say investors had let him down. Praetor responded by accelerating completion from 11 November to 21 October, three clear business days away, and served notices to complete on the acceleration date itself. Proceedings were issued the next day, barely a week after exchange.

No draft deed of covenant appeared anywhere in the pack. The buyer had never been asked to sign one.

A contractual impossibility

A party serving a notice to complete must be ready, willing and able to complete, judged at the date of service, though outstanding steps are permissible if achievable by the completion date (Cantt Pak, Aero Properties, Quadrangle Development v Jenner, Oakdown v Bernstein). Praetor could not transfer title without breaching the Top Contract. A party cannot claim to be ready, willing and able to do something which, in the doing, breaches an obligation owed to a third party, and the breach would have exposed the buyer to claims by the head seller.

Praetor's answer rested on Special Condition 11, which made the buyer responsible for the costs of any deed of covenant required under the Top Contract. Meeting the costs of a thing, the Deputy Master held, is not the same as being obliged to do it. Special Condition 7.2, barring objections based on the seller not being registered proprietor or the Top Contract not having completed, did not bite either: the objection relied on neither proposition. Any implied obligation would in any event have required the buyer to agree terms with a third party who might refuse or impose objectionable ones, which tells against implication. The submission that the deed could be completed in the registration gap under section 27 of the Land Registration Act 2002 proved the contrary point.

That the buyer took the argument only because it could not fund the purchase, which the evidence strongly suggested, was irrelevant. The objection was good in law whatever prompted it.

The obiter findings

Had the claim survived, the unconscionable bargain defence would not have. Nothing suggested Praetor knew of the guarantor's difficulties or acted with the moral culpability required by Boustany v Pigott and Fry v Lane.

The onerous clause doctrine, as reframed by the Court of Appeal in MS Amlin Marine NV v King Trader Ltd [2026] 2 WLR 163, fared better. The unilateral power to bring completion forward was discoverable only by cross-referring between two sets of standard conditions and the special conditions. The buyer's conveyancer described it as sharp practice she had not encountered. A real prospect of success was established, as was a real prospect on Special Condition 25, imposing a further premium of £8,000 or 5.5 per cent of the price, as an unenforceable penalty under Cavendish Square v Makdessi. The legitimate interest said to be protected was not apparent, the charge falling due on the completion date irrespective of whether time was of the essence.