Case No: (1) A3/2007/0354 (A)
(2) A3/2007/0354 (B) 
Neutral Citation Number: [2007] EWCA Civ 1461
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS DISTRICT REGISTRY 
(HIS HONOUR JUDGE PELLING QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 29th November 2007

Before:

LORD JUSTICE PILL
LORD JUSTICE SEDLEY
and
LORD JUSTICE RIMER
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Between:

	COLES AND OTHERS (TRUSTEES OF THE WARD GREEN WORKING MENS CLUB)	Appellant
	
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SAMUEL SMITH OLD BREWERY (TADCASTER) (AN UNLIMITED COMPANY) AND ANOTHER	
Respondent	

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Mr G M Jarand (instructed by Messrs Bailey & Haigh) appeared on behalf of the Appellant.
Mr G Cowen (instructed by Messrs Bromet And Sons) appeared on behalf of the Respondent.
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Judgment
Lord Justice Rimer:

Introduction

1.	This appeal is against the order dated 9 November 2006 of His Honour Judge Pelling QC sitting in Leeds as a judge of the Chancery Division. The claim was a purchasers’ action for specific performance of a contract constituted by the claimants’ exercise of an option. The judge dismissed that claim as against the first defendant and dismissed all claims as against the second defendant. He did, however, direct an inquiry as to the damages payable by the first defendant to the claimants for breach of contract. By the appeal, the claimants, represented by Mr Jarand, ask this court to reverse the judge’s refusal to order specific performance and to order it against both defendants.  The defendants, represented by Mr Cowen, ask the court to affirm the judge’s judgment for the reasons he gave and also to uphold it in reliance on a point that the judge rejected, one which is raised by a respondent’s notice served by the first defendant. I will deal first with the claimants’ challenge to the judge’s reasoning for refusing them the relief they claimed, and will then deal separately with the point raised by the respondent’s notice.

The facts
2.	The relevant facts fall within a small compass. The claimants are the trustees of the Ward Green Working Men’s Club (“the trustees”). The club is a registered society to which the Friendly Societies Act 1974 applies. The trustees and their predecessors have for many decades been tenants of premises at  Mount  Vernon  Road,  Ward  Green,  Barnsley,  South  Yorkshire (“the property”). They currently occupy it under a tenancy agreement dated 22 March 1984, that agreement having replaced at least one earlier tenancy agreement granted at the end of 1958. The current tenancy is terminable on 12 months’ notice, although it is one to which the provisions of Part II of the Landlord and Tenant Act 1954 apply. The landlords are, and have always been, the first defendant, Samuel Smith Old Brewery (Tadcaster), an unlimited company (“the Brewery”). The property is a purpose‑built clubhouse.  

3.	On some uncertain date in 1958, the Brewery (at that stage a limited company), acting by its director Mr Brooke, signed an informal document. It is apparent from it that the Brewery was about to enter into a tenancy agreement with the club, and the document granted the club an option to “… purchase the premises at any time by giving 6 months notice of intention at a price to be mutually agreed upon”. That formula for fixing the price immediately provokes the thought that the option, or any agreement purportedly constituted by its exercise, would or might be void as a mere agreement to agree.  I need, however, say no more than that that point was one of many argued before the judge, he ruled against it and there is no appeal against his decision in that respect.

4.	On 17 May 2002 the trustees gave a notice to the Brewery exercising the option. It was stated to expire on, and to require completion by, 30 November 2002.  On the face of it, the effect of that notice was to constitute a contract for the purchase of the property by the trustees from the Brewery. The Brewery, however, plainly did not wish to be compelled to sell the property to the trustees, and it considered it had a number of reasons as to why the purported contract was unenforceable. By way of giving itself yet another escape route from it, on 5 December 2002 it sold and transferred the property to its wholly owned subsidiary, Rochdale and Manor (Builders), also an unlimited company (“Rochdale”). Rochdale had been incorporated in 1989, it was and is in the business of developing and selling property and it already owned a number of properties. The sale was for £7,996.13, the value at which the property was shown in the Brewery’s books, being admittedly below its then market value.  In June 2005 the trustees obtained a valuation of the property as at 30 November 2002, which I understand to be of its value subject to the trustees’ tenancy. The valuation was at £120,000, alternatively £110,000, depending on a point about the repair of the property that I need not detail. I do not suggest that is an agreed value, but there is, I understand, little doubt that the value of the property was very substantially in excess of the price that Rochdale paid.

5.	The particular merit that the Brewery claimed to identify in that transaction with its subsidiary was as follows. As at the date of the conveyance to Rochdale, the title to the property was an unregistered one. The option was in the nature of an estate contract falling within Class C(iv) of section 10 of the Land  Charges  Act  1925 and of section 2 of the successor Act, the Land  Charges Act 1972.  In order to protect their rights under the option, and to enable it to be enforced against any purchasers of the property from the Brewery, the trustees should have registered it in the Brewery’s name as a Class C(iv) land charge in the register of land charges.  They had, however, at no stage done so.  The effect of section 4(6) of the 1972 Act (as also of section 13(2) of the 1925 Act) was that that failure meant that the option would be “… void as against a purchaser for money or money’s worth … of a legal estate in the land charged with it, unless the land charge is registered in the appropriate register before the completion of the purchase”.

6.	In particular, the Brewery’s scheme was that it would be able to meet any claim to enforce the purchase of the property by asserting that it no longer owned it and so could not convey it; and, as for Rochdale, as it was a “purchaser for money … of a legal estate” in the property, it could assert that not only was it not a party to the grant of the option or to the contract constituted by its exercise, but also that both the option and contract were, for want of due registration, void against it. I record that, following the sale to Rochdale, the title to the property was registered at HM Land Registry under Title Number SYK457665, but nothing turns on that.

The proceedings before Judge Pelling
7.	After a considerable pause, the trustees issued the present proceedings on 9 December 2005. They joined the Brewery as the first defendant and Rochdale as the second defendant. They claimed against both defendants specific performance of the purchase contract constituted by the exercise of the option. The joint defence raised a number of defensive arguments. On 29 June 2006 there was an order for the trial of various preliminary issues, including whether the trustees were entitled to specific performance of the contract they claimed had been constituted by the exercise of the option. Those issues came on for hearing before Judge Pelling and resulted in his judgment and order of 9 November 2006. The defendants raised 11 separate points by way of defence to the claim for specific performance.  Success on any one of them would have been sufficient.  As it was, ten failed and one succeeded, that success resulting in the dismissal of the specific performance claim. The effect, however, of the trustees’ success on all the other issues resulted in the judge upholding the option and its exercise as valid, and as giving rise to a valid and enforceable contract for the purchase of the property. His refusal, however, to order specific performance meant that the trustees were at most entitled to damages for breach of contract against the Brewery, and the judge ordered an appropriate inquiry. The appeal is against his refusal to order specific performance.

8.	The key to the judge’s decision was the decision of the House of Lords in Midland Bank Trust Co Limited and Another v Green [1981] 1 AC 513. That case also concerned the grant of an unregistered option to purchase land, one granted by father to son. The father wished to deprive his son of the benefit of the option and so he conveyed the land to his wife for £500, the land then being worth some £40,000. When the son found out about it, he sought to exercise the option, and then sued his father and his deceased mother’s estate for specific performance, as well as for damages for conspiracy by his parents.  Oliver J held that the sale to the mother was a genuine sale and was not a sham (see in particular Midland Bank Trust Co Limited & Another v Green [1980] 1 Ch 590, at 613E) and that she was “a purchaser of a legal estate for money or money’s worth” against whom the unregistered option was void under section 13(2) of the Land Charges Act 1925. It followed that the claim for specific performance against the mother’s estate failed.

9.	This court reversed that decision, but the House of Lords restored it.  Lord Wilberforce explained the case as being a plain one and that the mother was a person against whom the option was void for non‑registration. There was argument in the House as to whether it was also necessary for the mother to show that she was “in good faith”, but it was held that there was no such requirement in the case of a purchaser relying on section 13(2). The reason was that, if the position were otherwise, it would bring with it the necessity of enquiring into a purchaser’s motives and state of mind, and the case in question showed the difficulties which that could entail.

10.	The judge in the present case regarded the sale by the Brewery to Rochdale as just as genuine a sale, albeit also at a low price, as the sale by the father to the wife in the Green case. He rejected any suggestion that it was a sham in the familiar sense explained by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786.  The effect of that finding, linked with the decision in the Green case, was that, subject to the arguments advanced by the trustees, the option was void against Rochdale.  

11.	The rival argument turned primarily on the well known case of Jones and Another v Lipman and Another [1962] 1 WLR 832. In that case, the first defendant agreed to sell some land to the plaintiffs for £5,250. He soon repented of his bargain. He changed solicitors who, shortly before the day fixed for completion following the service of a notice to complete, informed the plaintiffs’ solicitors that the defendant had “… today executed a transfer of the property to a third party and is in breach of contract to your clients …”. They offered to pay damages. When requested, the first defendant’s solicitors declined to provide details of the purchaser. Proceedings for specific performance against the first defendant followed, in turn followed by a summons for summary judgment. At the first hearing, the first defendant informed the court that he had transferred the property to Alamed Limited, which was then joined as the second defendant. To shorten the details, it ultimately emerged that Alamed was a company in the first defendant’s control, to which he had sold the property for £3,000, of which Alamed had so far raised £1,564 required to redeem the mortgage on the property, the balance of the purchase price remaining outstanding.  

12.	The summary judgment application came before Russell J. He ordered specific performance against both the first defendant and Alamed. As against the first defendant, he did so on the basis that specific performance is available against a contracting vendor who has it in his power to compel another person to convey the property in question. The judge regarded that proposition as one of general principle, but as also anyway supported by Elliott  v  H. Elliott  (Builders)  Ltd  v  Pierson [1948] 1 Ch 452. The first defendant had the necessary power over Alamed, which was a company he wholly owned.  

13.	In addition, Russell J also ordered specific performance against Alamed itself.  He did so on the basis that Alamed “… is the creature of the first defendant, a device and a sham, a mask which he holds before his face in an attempt to avoid recognition by the eye of equity”. He found support for that conclusion in Gilford Motor Co. Ltd v Horne [1933] Ch 935.  That was a case in which an individual who was subject to covenants restricting his trading activities incorporated a company through which he then carried them out. An injunction was granted against both the individual and his company. This court upheld Farwell J’s conclusion that the company had been formed as a mere “cloak or sham” for the purpose of enabling the individual to breach the covenants he had entered into.

14.	Judge Pelling did not regard the Lipman case as carrying the day in favour of the trustees. He pointed out that no point was raised in it to the effect that the plaintiffs’ purchase contract was void against Alamed for want of registration under the Land Charges Act 1925. Judge Pelling was also right to view the case as one in which Russell J had regarded the establishment of and transfer to Alamed as in the nature of a sham established exclusively for the purpose of defeating the plaintiffs’ claim for specific performance. Judge Pelling did not say so, but I consider that it would probably follow that, on that basis, and even if a point under the Land Charges Act 1925 had been raised, it would have made no difference to the outcome before Russell J.

15.	The trustees’ argument before the judge was that the Green case fell to be distinguished because there the sale was to the vendor’s wife, an individual, whereas both in the Lipman case and in the present one the sale was to a company controlled by the transferor. The judge’s view was that that distinction was only a valid one if, in the present case, he could pierce the veil of incorporation and regard both defendants as in effect one and the same corporate person.  He explained that that was something that could not be done lightly.  He referred to various authorities on veil piercing, and said that the Lipman case had been regarded as one in which Russell J had pierced the veil on the basis that he had regarded Alamed as a “device and a sham, a mask …”.  In the judge’s view there was, however, no more basis in the present case for regarding the sale to Rochdale as a like device than there was in the case of the sale to the wife in the Green case. He said it might have been different if it had been proved that Rochdale was acting as the agent or nominee of the Brewery, just as it might have been in Green if it had been proved that the wife had been acting as the agent or nominee of her husband. The judge’s conclusion was that the sale to Rochdale was a genuine one and that Rochdale was entitled to assert that the contract was void against it. It followed that the judge held that no order for specific performance could be made against Rochdale. Nor, although the judge did not say why, was he prepared to make any such order against the Brewery.

The appeal
16.	On this appeal, Mr Jarand, for the trustees submits that as against the Brewery there is no answer to the claim for specific performance. Clear authority for that is to be found in the first limb of the decision of Russell J in the Lipman case. The Brewery is the contracting vendor, it is within its power to procure its wholly-owned subsidiary Rochdale to transfer of the property to the trustees; and, I might add, if the directors of Rochdale were to display any unwillingness to co-operate towards that end, it would be open to the Brewery to replace them with directors who would so co-operate. 

17.	If that is right, the trustees do not also need an order against Rochdale, but Mr Jarand nevertheless argued for such an order. His submission is that this case is indistinguishable from the Lipman case and that this court should find that the sale to Rochdale was tainted with the like impropriety as that with which Russell J apparently regarded the transaction in the Lipman case as tainted. It follows, he says, that Judge Pelling could and should have been prepared to pierce the corporate veil, identify Rochdale with its parent and make an order for specific performance against both companies.

18.	In advancing that argument, Mr Jarand disclaimed the suggestion that the sale to Rochdale was a “sham”, although that is in part how Russell J characterised the sale to Alamed in the Lipman case. Mr Jarand argued instead that it was enough to justify the court in piercing the veil that the transaction between the Brewery and Rochdale involved an impropriety, namely, the admitted motive of an attempt to defeat the trustees’ rights. That way of putting the case posed some difficulty for Mr Jarand. In Trustor  AB  v  Smallbone  and  others (No. 2) [2001] 1 WLR 1177, at paragraph 14, Sir Andrew Morritt V-C identified three suggested (in part, overlapping) categories of cases in which it may be appropriate to pierce the corporate veil, including (i) cases in which the company was shown to be a façade or a sham, and (ii) cases where the company was involved in some impropriety.  Sir Andrew Morritt regarded the Lipman case as illustrating at least the first category. But at paragraph 22 he expressed a cautious view as to whether mere proof that the company was involved in an impropriety would be sufficient to justify the court in piercing its veil of incorporation.  It was, so it seemed, a necessary part of Mr Jarand’s argument that the suggested impropriety in the present case was nevertheless sufficient so to justify the court.  

19.	For my part, whilst recognising the obvious factual similarity between the circumstances of the Lipman case and the present one, I feel unable, first of all, to question the judge’s conclusion that the transaction between the Brewery and Rochdale cannot and should not be regarded as a sham, any more than was the transaction between the husband and the wife in the Green case.  Both transactions were entered into for purpose of defeating the rights of the contracting purchaser, with the added ingredient that in both cases the defendants were seeking to exploit the failure of the grantees of the option to protect their own interests by duly registering the option as an estate contract.  In each case, the scheme underlying the transactions was either going to work or it was not. Oliver J’s view in the Green case was that the transaction was not a sham. So was Judge Pelling’s view in the present case. The sale by the Brewery to Rochdale was to a genuine company, for a genuine (albeit low) price, and the transaction was carried out overtly for all to see. The true nature of the transaction was precisely what it purports to have been, namely, a transaction which was intended to enable both Brewery and Rochdale to assert and rely on legal rights that would enable them to defeat the claim to enforce the option agreement. I would not disturb the judge’s rejection of the argument that the transaction involved a sham, and I have indicated that nor did Mr Jarand in terms argue otherwise. I have also indicated the rather narrow basis on which he did argue that the court could and should nevertheless conclude that, as he put it, there was as between the Brewery and Rochdale in fact no sale, no vendor and no purchaser. That is of course another way of saying that the transaction was a sham, which is what the judge held it was not, although the route towards that conclusion was based by Mr Jarand exclusively on the alleged impropriety of the transaction.

20.	I regard that as a difficult submission to make good, and I was not persuaded that it provided a sufficient basis on which to conclude that the judge should in fact have regarded the transaction as a sham. I prefer, however, to express no concluded view upon it. Its only object was for the purpose of obtaining an order for specific performance against Rochdale. If, however, such an order can and should be made against the Brewery, which is plainly in a position to procure Rochdale to complete the contract, there is simply no need for any such order against Rochdale. As to whether an order should be made against the Brewery, and subject to the point raised by the respondent’s notice, I am satisfied that it should. The judge appears to have concluded that as no order could be made against Rochdale direct, no order for specific performance should be made against the Brewery. He did not explain why and I consider that there is no answer to the making of such an order. The Lipman case provides clear authority for the view that such an order can be made and I cannot see why, subject as aforesaid, the Brewery should not now be compelled to procure Rochdale to transfer the property to the trustees in completion of the contract.  Mr Cowen’s only answer to this was that the court should not so order because the contract is void against Rochdale for want of registration. I agree that it was. But I see no reason why that provides any sufficient ground on the facts of this case justifying the court in declining to order specific performance against the Brewery.  

The respondent’s  notice
21.	I turn to the point raised by the respondent’s notice.  The point here is that it is said that part of the land which was the subject of the option agreement was sold in 1961 by the Brewery to the Worsbrough Urban District Council (“Worsbrough”). When therefore the trustees purported to exercise the option in 2002, they were doing so in respect of part only of the option land, which it is said they were not entitled to do under the option agreement. If the argument is right so far, the option agreement was of course as void against Worsbrough as it was and is against Rochdale, and in any event the trustees did not purport to exercise it against Worsbrough as well. That is no doubt because they did not regard the Brewery’s basic factual point as well‑founded, namely that the land sold to Worsbrough had originally formed part of the option land. The judge’s conclusion on this issue was that the Brewery had not proved the factual case it sought to make: that is, it did not prove that the land sold to Worsbrough was ever part of the option land. He therefore did not also go on to consider whether, if it had proved it, the point would have been fatal to the exercise of the option against the Brewery.

22.	By the respondent’s notice, the Brewery invites this court to hold that the judge was wrong to find the factual basis for that argument unproved. That involves a consideration of the less than complete conveyancing history of the relevant land through which Mr Cowen has taken us. The starting point is a conveyance dated 7 March 1936 made between (1) Mr Wentworth as vendor, (2) the then trustees of the club, and (3) the Brewery. That was the conveyance under which the Brewery acquired the land which either comprised, or at least included, the property it subsequently leased back to the club.  

23.	In paragraph 15 of his judgment, the judge described the land so purchased by the Brewery as “outlined in red on the plan annexed to the 1936 conveyance”, and he referred to a copy of the plan being at page 343 of the trial bundle.  That plan has typed on it the legend “copy of plan attached to conveyance of 7 March 1936”, and shows various parcels of land edged respectively green, red and black. The plan is, if I may say so, obviously based on the plan annexed to the 1936 conveyance, but I regard it as equally apparent that the colouring on it was not the like colouring as on the plan actually so annexed, which was also in the trial bundle at page 336. The plain inference is that the colouring was added later for some different purpose, although there is no evidence as to what that purpose was. The judge noted the latter plan in paragraph 22 of his judgment and regarded the manifest differences between it and the plan at page 343 as unexplained. 

24.	In my judgment, it is apparent that the plan at page 336 is a copy of the plan annexed to the 1936 conveyance, and I do not understand there to be any difference between counsel as to this. The parcels clause in that conveyance describes the land by reference to this plan in a way that satisfies me that the land thereby conveyed comprised a substantially larger area of land than the land outlined in red on the page 343 plan. The latter land forms, very roughly, the south-eastern half of the land conveyed by the 1936 conveyance, and that smaller area either represents (or at least approximates to) the land now occupied by the club. But the 1936 conveyance also plainly included an area lying to the north-west of that land. The plan attached to it describes the whole area of the land conveyed in 1936 as 1,940 square yards.   

25.	At least by the end of 1958, and probably before, the club became the tenant of either all or part of the land comprised in the 1936 conveyance. There is in the bundles a plan dating from 14 October 1949, which indicates that the area approximating to the land outlined in red that the judge had identified was apparently occupied by the Club. The plan does not, however, indicate whether it also occupied the further land in the Brewery’s title lying to the north-west. In that respect, the plan is entirely neutral. The 1958 tenancy agreement is also before us, but it also gives no clue as to the precise limits of the land comprised in it, referring merely to “…the Club Premises now occupied by [the club] and situate at Mount Vernon Road, Ward Green together with the premises and appurtenances thereunto belonging”.

26.	What then happened is that on 18 October 1961, by a conveyance of which a memorandum was endorsed on the 1936 conveyance, the Brewery sold to Worsbrough a parcel of land comprising 1,143 square yards and lying to the north-west of the site now occupied by the club. The Brewery’s point is that the judge should have found that the land comprised in the club’s tenancy and the land the subject of the option agreement comprised not just the land it continued to occupy after the sale to Worsbrough, but also the land sold to Worsbrough in 1961. The argument is that the effect of that sale was effectively to halve in size the land comprised in the club’s tenancy agreement, and to convey to Worsbrough approximately half of the option land.  

27.	If that is what did happen in 1961, it follows that the club would have been a necessary party to the sale to Worsbrough. The conveyance to Worsbrough includes no suggestion that they were taking the land subject to the club’s tenancy. On the face of it, they were taking it free of that tenancy.  That being so, it follows on the Brewery’s case that the club would have had to have surrendered part of its tenancy to the Brewery in order to enable the sale to Worsbrough to take place. There is, however, not a single piece of paper in evidence showing, or even suggesting, that the club so surrendered its tenancy of the land to Worsbrough, or that following the sale there was any reduction in the rent payable by the club, which the 1958 tenancy agreement fixed at £110 per year. 

28.	The judge found, as I have said, that the Brewery had not proved that the land sold to Worsbrough was ever comprised in the club’s tenancy and option agreement, and therefore did not go on to consider the consequences on the trustees’ case if it had been. For reasons given, I consider that the judge was, with respect, mistaken as to which plan was attached to the 1936 conveyance; but I would not regard that mistake as vitiating his conclusion that the Brewery had not proved its factual case. The material before this court is the same as that before the judge, and I am wholly unpersuaded by the documents through which we have been taken that the judge should have found that the land sold to Worsbrough ever formed part of the option land. Mr Cowen relied in part, in support of this argument, on the unchallenged evidence from Norman Scarr, who had been the secretary of the Brewery and Rochdale since 1997 and had previously been employed by the Brewery since 1976. In paragraph 7 of his witness statement he said that “having seen documents relevant to the proceedings, as presented to me by the defendants’ solicitors” it appeared clear to him that (and I paraphrase) the property which was the subject of the exercise of the option differed from the property comprised in the option agreement, and he referred to the sale to Worsbrough. Those documents are the ones to which we have been referred, and whilst it may have appeared clear to Mr Scarr what the position was, I do not share his view.  I regard the position as unclear, and I consider that the judge was fully entitled to conclude that the Brewery had not proved its factual case on this point. It follows that I do not consider it necessary to consider, any more than the judge thought it was, the consequences of the position had the Brewery made good its case that the option land had included the land sold to Worsbrough.
Result
29.	I would therefore, for the reasons given, allow the appeal and set aside the judge’s order insofar as he refused to order specific performance against the Brewery. I would make an order for specific performance against the Brewery, and I would direct that the order should in terms include a direction that Brewery should be required to procure that Rochdale transfer the property to the trustees for the purposes of completing the contract. If my Lords agree with my proposal, then no doubt the precise form of the order will need careful consideration.

Lord Justice Pill:

30.	I agree.

Lord Justice Sedley: 

31.	I also agree.

Order: Appeal allowed