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Terms of the contract require retailer to fit out anchor unit in shopping centre

By: Hannah Godfrey BL

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High Court grants orders of specific performance in proceedings arising out of a development contract, finding that: (a) the proper construction of the relevant clauses was that although the defendant had an element of discretion or flexibility as to the detail of the fitting out works, it was required to fit out the anchor unit and was not entitled to decide that it would not use the store; and (b) it had not, however, been an abuse of process for the defendant to raise the construction issue in defending the proceedings.

Action for breach of contract seeking specific performance - development including shopping centre - multiple sets of proceedings between the parties - plaintiff developer now in receivership - original development agreement amended by settlement agreement - in these proceedings alleged by plaintiff that defendant retailer had failed to fulfil duties under the contract as to the fitting out of anchor unit - obligations under the contract included, inter alia, submitting fit-out plans to the receivers and obtaining permissions, consents, approvals, licenses, certificates and permits - contended by defendant that it did not require any works to be carried out at this stage and had not formed the intention to use the anchor store - principles of contractual interpretation - whether defendant had discretion to not carry out the works - whether defendant was precluded from contesting the construction of the contract as it was res judicata or under the rule in Henderson v. Henderson.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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