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High Court of Justice Chancery DivisionThursday 15 February 2018

Gaia Ventures Ltd v Abbeygate Helical (Leisure Plaza) Ltd [2018] EWHC 118 (Ch)

Norris J has handed down judgment in the case of Gaia Ventures Ltd v Abbeygate Helical (Leisure Plaza) Ltd.  The case was about an overage payment of £1.4million.  The key issues were: (a) the meaning of an obligation on a developer (Abbeygate) to use “reasonable endeavours” to achieve “as soon as reasonably practicable” the satisfaction of certain conditions; and (b) whether the developer had become obliged to make the overage payment of £1.4million or to pay damages in lieu.

Mark Wonnacott QC and Harriet Holmes, who acted for the successful claimant (Gaia), argued that delaying satisfaction of one of those conditions for financial reasons breached the obligation to use reasonable endeavours to achieve it “as soon as reasonably practicable”.  Norris J agreed, holding that, whilst reasonable steps had to be taken to achieve certain conditions, the requirement to take steps “as soon as reasonably practicable” relates to the time for performance.  So, to use Norris J’s words:

The obligation is not to do it ‘when convenient’ or ‘at the time best suited to Abbeygate’; but as soon as reasonably practicable”.

The judge went on to conclude that Abbeygate had not, in fact, satisfied that obligation, but, if they had, the overage would have been triggered at a time that entitled Gaia to claim the overage payment.  Gaia was, therefore, entitled to recover the £1.4m overage payment.

Download the full judgment here.

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