#6595 - Radford V. De Froberville Cost Of Cure - Commercial Remedies BCL

Radford v. De Froberville – Cost of Cure Issue

Facts

The plaintiff, Brigadier Radford, lives in Dorset but is the owner of a substantial house in London at 89, Holland Park. This is divided into six flats which, at all material times, were let to tenants holding under leases for terms varying between four and six years. The house had, for a London house, a large garden which had the unusual and advantageous feature that, on the south-east side, it contained an area of about 23 feet in width by about 140 feet in depth which was unbuilt on and which fronted on the highway. It was, therefore, ideally suited for development as a building site and I will refer to it as “the plot”.

In 1965 the plaintiff had some plans prepared for a new house to be erected on the plot and obtained a planning permission to that end. He then offered it for sale and it was bought by the defendant for a price of 6,500 and on terms that she was going to build the proposed house. The sale was completed by a transfer dated December 10, 1965, in which the defendant covenanted with the plaintiff (inter alia) that once a wall had been erected to divide the plot from the plaintiff's land she would thereafter maintain it in good and substantial repair.

It is the fourth of those covenants that has given rise to the question which I am called on to decide. It is quite an elaborate covenant, which specifies in some detail what has to be done and I had, I think, better read it in full:

“That the purchaser shall forthwith erect on the said land a brick wall separating the said land from the remainder of the garden of no. 89 Holland Park the said wall to be of a minimum height of seven feet above ground level and to be of a minimum thickness of nine inches”

Despite this further indulgence nothing was done to carry out the covenanted development and on November 21, 1968, the defendant notified the plaintiff that she was not able to carry out the development and that she had contracted to sell the plot (as she was now able to do as a result of the concessionary abrogation of the plaintiff's right of pre-emption). That sale was completed by a transfer to a Miss Lange, the third party, dated January 15, 1969, at a very considerable advance in price and Miss Lange was registered as the proprietor of the plot on February 6, 1969.

Claim for damages: On April 30, 1973, the plaintiff issued a specially indorsed writ against the defendant claiming damages for breach of the covenant to develop. A defence was served admitting all the allegations, except that any damage had been sustained. After an amendment of the statement of claim on February 4, 1975, to claim specifically damages for the non-erection of the dividing wall between the plot and the plaintiff's property, judgment was entered for the plaintiff on the admissions in the defence on February 28, 1975.

Holding

The plaintiff contracted for the supply of a wall bounding his property as part of the consideration for the transfer and the effect of the transaction was that he paid for it in advance, because he transferred his land before the work was done. That price cannot, of course, be restored to him nor can the defendant's part of the bargain be specifically performed, because she has sold the land to a stranger to the contract. Why should he not now be compensated by awarding him the sum which is required to enable him to carry out, as nearly as possible, for himself what the defendant has failed to do for him?

If he contracts for the supply of that which he thinks serves his interests — be they commercial, aesthetic or merely eccentric — then if that which is contracted for is not supplied by the other contracting...