Cole v Rose: 1978

The vendor had purported to rescind the contract and retain the deposit, while selling to another purchaser at a higher price.
Held: The purchaser was entitled to return of the deposit, because the notice to complete had been ineffective. After referring to Schindler, Mervin Davies J said: ‘With those observations in mind, it seems that one can contemplate an order under s 49(2) only if there are some special circumstances in the particular matter, being circumstances that suggest that it is perhaps unfair or inequitable that the purchaser should lose his deposit. I cannot see any special circumstances in the present case. It is a straightforward case of a contract for sale that was not completed because the purchaser could not find the purchase price in time.’


Mervyn Davies QC J


[1978] 3 All ER 1121


Law of Property Act 1925 49(2)


England and Wales


CitedSchindler v Pigault 1975
The purchaser of land had not completed and sought return of the deposit paid claiming default by the vendor, or alternatively under section 49(2).
Held: He was entitled to the repayment of the deposit on the first ground. The court went . .

Cited by:

CitedMIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Lists of cited by and citing cases may be incomplete.

Contract, Land

Updated: 10 May 2022; Ref: scu.279044