Philip Sissons acts for the successful claimant in Whitburn Estates Ltd v Thirteen Homes Ltd [2026] EWHC 1256 (Ch)
Mr Justice Leech recently handed down judgment in Whitburn Estates Ltd v Thirteen Homes Ltd [2026] EWHC 1256 (Ch), in which Phil Sissons acted for the successful claimant.
The case concerned Whitburn’s entitlement to retain a deposit paid pursuant to a conditional contract for sale. The purchaser, Thirteen, argued that it had validly terminated the contract and was entitled to the return of the deposit. However, the judge held that at the time the notice was served Thirteen was in breach of contract so the purported termination notice was invalid. Instead, the contract was terminated by Whitburn either by acceptance of a repudiatory breach or, alternatively, pursuant to Whitburn’s own contractual termination notice. The judge also rejected an alternative claim under s. 49 (2) of the LPA 1925.
The judgment contains detailed discussion of a number of issues which will be of general interest to property practitioners, including (i) when time is of the essence of a contractual obligation; (ii) the scope of an obligation to use reasonable endeavours; (iii) the effect of an affirmation/waiver by the innocent party where a breach continues; (iv) the distinction between waiver by estoppel and election; (v) whether condition 10.2 of the standard commercial conditions applies to a contractual right of termination; and (vi) the test to be applied under s. 49.
A full copy of the judgment can be found here.
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