NOTE 83. ADD: In Aribisala v St James Homes (Grosvenor Dock) Ltd [2007] EWHC 1694 (Ch), 2007 3 EGLR 39 it was held that it was not possible to exclude the operation of section 49(2) by agreement.

NOTE 84. ADD: In Midill (97PL) Ltd v. Park Lane Estates Ltd [2009] EWCA Civ 1227, [2009] 2 All ER 1067, [2009] 1 EGLR 65 Carnwath LJ reviewed all of the authorities and academic comment on section 49(2) and concluded (at [52]) that the jurisdiction remained exceptional. On the facts, the Court found that the purchaser was not entitled to the return of its deposit although the vendor had resold the property at a profit.

NOTE 85. ADD: In the subsequent hearing to determine whether the deposit should be returned (Aribisala v St James Homes (Grosvenor Dock) Ltd [2008] EWHC 456 (Ch), [2008] 3 All ER 762) Floyd J held that it was insufficient to justify the return of a deposit that the vendor had made a significant profit from the breach of contract although the effect on the vendor was one factor to be taken into account. He stated the relevant considerations at [13] as follows: "I think what needs to be looked at is how close the purchaser came to performing the contract, what alternatives he was able to propose to the vendor and how advantageous they would be compared with actual performance of the contractual terms. Where the purchaser simply could not perform the contract or offer any such alternative, then it would be exceptional, as Arden LJ held, for the deposit to be returned."