TCC Refuses Reverse Summary Judgment on Claim for Repudiatory Breach of Remediation Agreement

In the Technology and Construction Court ("TCC"), Mr Justice Constable has handed down judgment in Durkan Estates Limited v Wallace Estates Limited [2026] EWHC (TCC) refusing a freeholder's application for summary judgment following purported termination of a remediation agreement.

Background

This decision arises from a dispute concerning a remediation agreement dated 1 July 2024 ("RA") executed against the backdrop of a Remediation Order ("RO") made on 4 January 2024 in relation to a development known as Centrillion Point in Croydon. The claimant, Durkan Estates Limited ("Durkan"), had originally converted Centrillion Point, from an office building into dwellings in the late 2000s. The defendant, Wallace Estates Limited ("Wallace"), subsequently acquired the freehold in 2014.

The RO made by the First-Tier Tribunal ("FTT") under section 123 of the BSA required Wallace to remedy specified building safety defects by 31 May 2025 (the "RO Deadline"). Durkan subsequently agreed with Wallace to carry out the remedial works at Durkan’s cost. The RA set a Completion Date of 19 September 2025 or such other date as may be agreed ("Completion Date").

The remedial works were delayed and were not completed by the RO Deadline. Wallace applied to the FTT to vary the RO Deadline and on 24 June 2025, the FTT refused Wallace's application. The FTT  noted that no Gateway 2 application to the Building Safety Regulator ("BSR") had yet been made and there was no specified date by which the remedial works would be complete. At the application hearing, Wallace proposed to allow Durkan to continue with the remedial works and submitted that terminating the RA was '"not the panacea." Just two days later, Wallace served a notice purporting to terminate the RA ("Purported Termination Notice"), alleging both a contractual right under the "Substantive Breach" definition in the RA and a common law right based on repudiatory and/or anticipatory breach.

Wallace engaged an alternative contractor to progress the remedial works. In parallel, in September 2025, Wallace made an application in the FTT for a Remediation Contribution Order ("RCO") under section 124 of the Building Safety Act 2022 against Durkan and its parent company. Durkan opposed that application on the grounds that it was not just and equitable in the circumstances of the purported termination of the RA.

Durkan subsequently commenced TCC proceedings seeking declarations that the purported termination was unlawful, as such matters were outside the jurisdiction of the FTT in the RCO proceedings. Wallace contested those TCC proceedings and counterclaimed that its purported termination of the RA was lawful. On 28 May 2026, Wallace applied for reverse summary judgment on its case that its purported termination was lawful, under CPR Part 24.

The Application

Wallace's summary judgment application was confined to the question of whether Durkan was in repudiatory or anticipatory breach at common law; it did not pursue the contractual termination ground based on the definition of "Substantive Breach" previously stipulated in the Purported Termination Notice.

Wallace relied principally on Durkan not submitting finalised plans and specifications, nor being in a position to submit the Gateway 2 by the Completion Date. Durkan contested the application on numerous grounds and relied on detailed factual and expert evidence explaining why the proceedings were not suitable for summary judgment and that a full trial was required.

The Decision

Mr Justice Constable dismissed Wallace's application in its entirety, holding that Durkan's claim that termination of the RA was unlawful had a real prospect of success which required "factual investigation and determination at trial." The key arguments and the court’s judgment are summarised below:

1. Time stipulations in BSA related remediation agreements

The judgment contains an important discussion of how time obligations operate in the novel context of BSA remediation agreements addressing relevant defects under the BSA. Wallace admitted that time was not of the essence, and no notice had been served to make it so. The Court emphasised that whilst the BSA context and the existence of the RO "materially increase the importance of timely performance," they do not "of and in themselves alter the test for repudiation nor convert a non-essential time stipulation into a condition." This is a significant finding as it confirms that even where directors may face potential committal proceedings for non-compliance with an RO, this does not overrule the orthodox common law analysis of time stipulations in related remediation agreements.

2. Repudiatory breach requires full factual inquiry — the bar remains high

Constable J reaffirmed, citing Ampurius Nu Homes Holdings Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577, that the test for repudiatory breach of an innominate time obligation—whether the innocent party has been deprived of "substantially the whole benefit" of the contract—and that this "sets the bar high" and is the same test as for frustration. The Court found that the multi-factorial assessment required by Ampurius (including financial loss, benefit already received, adequacy of damages, remediability of breach, and whether the guilty party was making efforts to perform) was fact sensitive and must take into account all circumstances of a case and would likely be "inherently unsuitable for summary determination."

3. Contractual termination regimes inform the common law analysis

The judgment underscores that a party's common law right to terminate does not render the contractual termination provisions irrelevant. Drawing on BSkyB v HP Enterprise Services [2010] EWHC 86 (TCC), Constable J noted that where parties have agreed a regime for addressing breaches (in this case, the "Substantive Breach" definition distinguishing between remediable and irremediable breaches, with notice and cure provisions), that machinery forms part of "all the circumstances" to be weighed even if termination via the contractual mechanism is not pleaded. Conduct falling within a contractual regime designated by the parties as remediable may not readily be characterised as repudiatory. This principle has practical implications for the drafting of termination clauses in remediation agreements and construction contracts more broadly.

4. "Time at large"

Durkan asserts that the originally specified Completion Date was amended by agreement of the parties so that time was at large and/or the same effect had been achieved by a convention of the parties (i.e., estoppel by convention). Durkan's evidence was that both parties proceeded on the shared assumption that the Completion Date of 19 September 2025 was unachievable and that completion would follow 68 weeks after BSR approval, as shown in both the original and revised programme for the works. The Court held that Durkan's argument regarding the variation of the Completion Date and estoppel argument could not be dismissed summarily.

5. Affirmation: Wallace's dramatic U-Turn

The facts on affirmation were particularly striking. Wallace's own skeleton argument at the FTT hearing on 24 June 2025 stated that termination was "not the panacea," and that Wallace was "reasonable in allowing Durkan to continue at this point in time." Wallace's witness at the time confirmed that engaging a replacement contractor "would simply lead to a longer delay." Two days later, the Purported Termination Notice was served. The Court found there was at least a real prospect that these facts satisfied the elements of election to affirm, and that disclosure of Wallace's internal communications during that 48-hour window was "crucial."

Wallace relied on a non-waiver clause providing that no election to affirm would be effective unless in writing. The Court held this was not a complete answer, finding it "reasonably arguable" that submissions to the FTT in writing, made in the knowledge of Durkan, could constitute written affirmation for the purposes of the clause.

6. Unpleaded contractual defences cannot rescue a summary judgment application

Constable J was critical of Wallace's attempt to rely, for the first time at the Summary Judgment hearing, on specific contractual provisions said to answer Durkan's factual evidence of prevention and delay. The Court held that these were "specific contractual defences to specific allegations of prevention" which should have been pleaded, so that Durkan could respond—for example, by raising an estoppel. It was "not sufficient" to rely on the "not uncommon plea" in Wallace’s Defence and Counterclaim that it will rely on the entire RA at trial. The specific clauses relied on in submission ought to have been pleaded. Nevertheless, Constable J found that even if they had been pleaded, "their existence would have been insufficient to allow disposal of the matter summarily."

7. Replacement contractor's performance as a relevant comparator

An interesting evidential point arose from the fact that, following termination, Wallace's replacement contractor took significantly longer than Durkan's expert estimated it would have taken Durkan to complete the Gateway 2 submission, but for the purported termination. Committal proceedings were in fact commenced against Wallace during this extended period. The Court found there was a "real prospect" that this comparison would be relevant to assessing whether Durkan's breach had truly deprived Wallace of substantially the whole benefit of the contract.

Key takeaways from Durkan v Wallace

• This is one of the first reported TCC decisions to consider the interaction between common law termination principles in contracts, such as remediation agreements and related RO or RCO proceedings under the BSA regime.
• The case provides useful guidance in this area on several fronts, including:
• The high threshold for establishing repudiatory breach of time obligations in construction and remediation contracts;
• The relevance of contractual termination machinery to the common law analysis; and
• The potential for variations or estoppel to override agreed contractual completion dates where both parties have proceeded on a shared assumption.

This judgment serves as a cautionary tale about the risks of making a summary judgment application in the context of a complex dispute replete with detailed issues of factual and expert evidence against the backdrop of an evolving building safety landscape. The ambiguity in the RA, the novel factual background (including a sudden change of position by the terminating party) were all matters that meant a trial was necessary.

In the Application, Alice Sims, instructed by Mayer Brown, represented Durkan.