76 Mr Roberts is a particular and punctilious man. He takes a strict and punctilious view of his rights and obligations, to a point which some, including no doubt Mr Jamieson, especially in his present circumstances, must find infuriating. He insists that things are done absolutely "properly". Generally speaking, his answers were direct and precise. While it is the case that he often asked for questions to be repeated, contrary to Mr Coles' submission I thought that these requests were not dissembling but reflective of a genuine need on his part for precision in the questions that he was asked. However, his reliability - particularly on matters going to his subjective state of mind as distinct from objective facts - was clouded by his reluctance to concede - though he ultimately did - that it was his preference that the development proceed with himself as an interested party. And serious doubt was cast over a significant aspect of his evidence - his claim that he was not aware of the proposed auction date until 30 August, by the circumstance that, on 25 August, Colliers sent to Mr Jamieson and Mr Roberts by email a letter attaching a copy of the signed marketing schedule, noting that the soonest that all of the marketing material would be available for distribution would be "Tuesday week", and that for that reason it was appropriate that the auction be held on 28 September.
77 Against that, I do not consider that I can safely rely on Mr Jamieson's evidence as an accurate report of the 14 September conversation. As his cross-examination progressed, Mr Jamieson became progressively more overtly adversarial, it becoming apparent that he was determined to make whatever points he could against Mr Roberts. I do not overlook Mr Coles' submission that a party to litigation may understandably adopt an adversarial position in the witness box, as a result of the attacks made upon him and his position in the litigation, and that one should not be too hasty to discount his evidence on that account. However, such a presentation demonstrates a want of objectivity, which may warrant treating the witness's evidence with caution. Moreover, that want of objectivity was reflected in the case of Mr Jamieson by a propensity to make assumptions which invariably favoured his own position; to assume the most sinister explanation for Mr Roberts' conduct; and to misconstrue correspondence in a manner which suited his case but which it obviously did not bear. His evidence was often lacking in precision and accuracy; one example is his assertion that he had prepared the typescript notes of the 14 September conversation with Mr Roberts in his car immediately following the conversation, from which he was compelled to resile. He is no doubt concerned to secure an early sale and, I infer, is under no little financial pressure to do so. His pressing need for an early sale inclines him to view any steps taken by Mr Roberts to raise any query as being calculated to delay or defeat a sale. He is convinced that Mr Roberts is seeking to obstruct the sale, and that conviction has coloured his view of events. In my view Mr Jamieson is sensitive to his present financial vulnerability, can see that it may be in Mr Roberts' interests to prolong the sale process, is very frustrated by the delays which have so far taken place, and firmly believes that Mr Roberts is deliberately causing delay. Given that state of mind, and coupled with his demonstrable ability to read correspondence (and, I infer, hear conversations) in a way consistent with his own case but which they do not in fact bear, I cannot safely prefer his version.
78 I cannot resolve this issue by preferring one version to the other. It is improbable that either version is entirely accurate, and likely that the versions of each protagonist are coloured by their perceptions of their respective positions. It is unnecessary to conclude precisely what was said; the crucial question is whether what Mr Roberts said founded a reasonable apprehension that Proceris might not perform its contractual obligations.
79 The probabilities favour the view that the conversation taken as a whole did not convey an outright declaration by Mr Roberts that he would frustrate the sale: had he done so, there would have been no point in Mr Jamieson returning for further discussions that afternoon and on following days. But it certainly included a statement to the effect that a sale was not reasonably practicable, and on the probabilities it did convey, at least implicitly, the suggestion that if he wanted to do so, Mr Roberts could make things very difficult, so as to found a reasonable apprehension of non-performance by Proceris of its obligation to do all things necessary on its part to facilitate an auction sale as soon as practicable: there would have been nothing further to discuss and resolve had it not done so.
80 The critical factor in reaching this conclusion is the logic of the positions of each of the parties. Mr Jamieson, to Mr Roberts' knowledge, was under financial pressure and wanted to extricate himself from it with a quick sale, as swiftly as possible. Mr Roberts had, by the 29 July agreement, bound himself to cooperate in bringing about an auction sale "as soon as practicable". But Mr Roberts preferred an alternative outcome, which would permit the development to proceed: the "Issues for Discussion" paper of 16 September makes this clear, and though his admissions were less than fulsome, he did in substance concede that was his preference. He wished to negotiate for an alternative outcome, as that "Issues" paper shows. But if he were to perform Proceris' contractual obligation to co-operate in bringing about an auction sale "as soon as practicable", he had no negotiating position.
81 That a party might prefer another outcome does not necessarily mean that it will not perform its contractual obligations as required, and it is not always inconsistent for a party to a contract to negotiate for an alternative outcome while at the same time bona fide intending to perform the contract if the alternative is not agreed. However, that is not the case where the party's bargaining position is the threat, express or implied, that unless an alternative outcome is agreed, it will not perform the contract (to the prejudice of the other party).
82 For example, a negotiation which proceeded on the basis that there were more attractive outcomes for Urban than the contractual outcome, Proceris' explicit or implicit position being "but if you don't like them, we'll implement the contract leaving you to your less favourable contractual position" would be unobjectionable. But that was not the way Mr Roberts proceeded.
83 On Mr Roberts' version:-
· he maintained that it was not presently practicable for there to be an auction;
· he raised the spectre of liability for insolvent trading;
· he raised the prospect of himself carrying out the development and buying out Urban' interest;
· Mr Jamieson rejected that proposal;
· Mr Roberts said that sale at the moment was not practicable, and invited Mr Jamieson to commence having daily meetings with him "to resolve issues so that we both don't lose out … until we resolve all the issues and bring the matter to a conclusion".
84 It is plain that, on Mr Robert's own version, the issues to be resolved were Mr Roberts' desire to negotiate an outcome other than a sale, and given that he was already bound to co-operate in a sale, his only real negotiating position to achieve that end was such capacity as he might have to impede a sale despite his contractual obligation. Mr Roberts emphasised the dire straits in which Urban and the Jamiesons were, and the jeopardy which they faced. On his own version, he conveyed that the sale was not going to happen as quickly as Mr Jamieson would like. To achieve the outcome he desired, his negotiating position had to be, in effect, that the sale might take too long to save Urban. It was that threat, implicit if not explicit, which gave rise to the need for further discussions to "resolve issues". Without it, there would not have been issues for resolution between Mr Jamieson and Mr Roberts. The issue about the s 149 certificate was not one which would or could be sorted out by conversations between them.
85 In the context of 14 and 16 September, Mr Roberts' negotiating position was necessarily that he may be able to prevent Urban securing the agreed outcome of a sale "as soon as practicable", and it was the existence of that position which necessitated further discussions. That founded a reasonable apprehension that Proceris might not perform its contractual obligations, which apprehension was considerably reinforced by the "Issues for Discussion" paper, and by the caveat.
86 No hardship would be occasioned to Proceris from being held to the 29 July agreement. A fundamental purpose of the 29 July agreement was to enable Urban to discharge its liabilities. Substantial damage ($10,000 per week in interest, and the risk of default) would be occasioned to Urban if the auction were delayed. Given the reasonable apprehension of non-performance, and that potential damage, there was sufficient to invoke the intervention of equity, and the balance of risk and hardship favours the granting of specific relief. At the time when Urban instituted proceedings for specific performance, it was justified in doing so.
87 Mr Alexis did not oppose the relief in claim 1 in the summons. However, he opposed the more specific directions in claim 3. By the time of the hearing, Mr Roberts had approved the contract, executed the agency agreement, and agreed to an auction date (2 November). He had withdrawn the caveat. The evidence does not establish any failure on the part of Mr Roberts or Proceris to execute any particular document or take any particular step to advance the sale when it was incumbent on them to do so. Some of the steps about which directions were sought had already been performed by the time of the hearing. The time for performance of the others had not arrived. In that context, relief in the declaratory rather than prescriptive form is appropriate [see Hasham v Zenab [1960] AC 316; Tito v Waddell (No. 2) [1977] Ch 106, 324].
Conclusion and orders