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Radford V. De Froberville Notes

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RADFORD V. DE FROBERVILLE FACTS The plaintiff, Brigadier Radford, lives in Dorset but is the owner of a substantial house in London at 89, Holland Park. This is divided into six flats which, at all material times, were let to tenants holding under leases for terms varying between four and six years. The house had, for a London house, a large garden which had the unusual and advantageous feature that, on the south-east side, it contained an area of about 23 feet in width by about 140 feet in depth which was unbuilt on and which fronted on the highway. It was, therefore, ideally suited for development as a building site and I will refer to it as "the plot". In 1965 the plaintiff had some plans prepared for a new house to be erected on the plot and obtained a planning permission to that end. He then offered it for sale and it was bought by the defendant for a price of £6,500 and on terms that she was going to build the proposed house. The sale was completed by a transfer dated December 10, 1965, in which the defendant covenanted with the plaintiff (inter alia) that once a wall had been erected to divide the plot from the plaintiff's land she would thereafter maintain it in good and substantial repair. It is the fourth of those covenants that has given rise to the question which I am called on to decide. It is quite an elaborate covenant, which specifies in some detail what has to be done and I had, I think, better read it in full: "That the purchaser shall forthwith erect on the said land a brick wall separating the said land from the remainder of the garden of no. 89 Holland Park the said wall to be of a minimum height of seven feet above ground level and to be of a minimum thickness of…" Transfer to third party: the defendant notified the plaintiff that she was not able to carry out the development and that she had contracted to sell the plot (as she was now able to do as a result of the concessionary abrogation of the plaintiff's right of pre-emption). That sale was completed by a transfer to a Miss Lange, the third party, dated January 15, 1969, at a very considerable advance in price and Miss Lange was registered as the proprietor of the plot on February 6, 1969. In the transfer to her, Miss Lange covenanted with the defendant — but by way of indemnity only — to observe and perform the covenants in the transfer to the defendant and in the two supplementary agreements, so far as they were still subsisting and capable of taking effect. A defence was served admitting all the allegations, except that any damage had been sustained. After an amendment of the statement

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