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Context of contract terms key to housebuilder's share of profits agreement ...

The Council sold land to Stewart Milne Group (SMG) in 2004 for £365,000 and negotiated terms entitling it a share of any profits SMG made on the land.

There were three circumstances which would trigger payment of a proportion of the profits: if SMG  bought out the Council's rights to the profit share; if SMG leased the property to a third party for more than 25 years; and if SMG sold the property to a third party. 

In 2006 when SMG sold the land to a subsidiary for £483,020 it said that as certain pre-agreed costs were to be deducted from the price paid by the subsidiary and this resulted in a loss to SMG, no profit was realised and no additional payment was due to the Council.

Although not expressly provided for in the property contract, Aberdeen City Council argued that the intention of the profit share provision in the event of sale required SMG to calculate whether it had to pay a share of profits based on the "open market valuation" of the land at the time of sale rather than on the basis of the "gross sale proceeds" but SMG disagreed. The Court of Session in Scotland sided with the Council and SMG lost its appeal against that ruling at the Supreme Court on Wednesday.

The Supreme Court ruled that the "context" of the terms set out in the contract between the disputing parties had meant that SMG should have assessed the Council's entitlement to a share of the re-sale profits based on an open market valuation of the land.

"The context shows that the intention of the parties must be taken to have been that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. In other words, it can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into," the Supreme Court ruled . (13-page / 52KB PDF)

"The fact that this makes good commercial sense is simply a makeweight. The words of the contract itself tell us that this must be taken to have been what they had in mind when they entered into it," it said. "The only question is whether effect can be given to this unspoken intention without undue violence to the words they actually used in their agreement. For the reasons I have given, I would hold that the words which they used do not prevent its being given effect in the way I have indicated.

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