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ACTION: An atmospheric  scene from Bloodforge, one of Climax Studios’ best-selling games.

A game developer in the heart of the South  Coast is expanding with the help of business law specialist Graeme Quar & Co.

Climax Studios, which is behind virtual titles such as EyePet & Friends, Rocket Knight and Bloodforge, has signed up a third office at  Gunwharf Quays, Portsmouth.

The lease details were handled by Graeme Quar & Co, the commercial solicitors headquartered at Orchard House, Wickham Road, Fareham.

It is the latest legal work the firm has done for Climax, which employs more than 140 development staff, in a professional  relationship dating back 18 years.

Climax is a registered developer with Microsoft, Sony, Nintendo and Apple, with development experience in all video game console  formats, such as Microsoft’s Xbox 360, Sony’s PlayStation 3 and Nintendo’s Wii.

The company, nearly 25 years old, is currently working on announced games with Sony XDev, Sony Studios London and Microsoft  Studios and on an unannounced game with a high-profile publisher.

Simon Gardner, Climax’s chief executive, said: “Demand for our character action games is strong, with popular titles such as EyePet  & Friends, Rocket Knight and Bloodforge, and we need even more space now due to operational requirements.

“The online game community in the UK is thriving, with more and more participants downloading products and extras rather than buying in-store, and our developments reflect that trend.

“Graeme Quar & Co has been successfully advising us for many years now and we’re grateful to Graeme’s team for guiding us hassle-free through another property transaction.”

The new 65.5 sq m (705 sq ft) office is at 2 Boyd, The Admirals, while the other offices are at 7-10 Sommerville Office, North Promenade  Building. Lease details were not disclosed.

Graeme Quar, managing director, said: “Simon and his team are at the cutting edge of their industry and their success is very much something that Portsmouth and Hampshire should be celebrating.

“We wish Climax every continued success in what is an inspirational business story of innovation, drive and verve.”

For this post, we have a guest blogger, John Plumridge of Curtis Plumstone Associates

 CAPITAL ALLOWANCES –THE NEW LEGISLATION.

Currently, as I write this blog in March 2012 many people involved in commercial property may well be unaware of the changes which are going to take effect in April 2012.  The purpose of writing this particular blog is therefore to try and enlighten them as to these changes and the pitfalls, which may well include being sued, if they do not accept that they are to play a central role in advising their clients in respect of capital allowances claims on commercial property.

What’s happening post April 2012 if there has been no previous claim?

If a company or individual is selling a commercial property purchased before April 2012 then not a lot will change. The buyer’s solicitor still needs to ensure they receive properly completed section 19 of the CPSE1 form to establish the capital allowances claims history of the property being sold. If it appears there have been no previous capital allowances claims on the property then a Section 198 Election Agreement for plant and machinery fixtures is not possible and the right to claim capital allowances on the property will transfer to the buyer just as it does now. In summary the buyer is normally in the stronger position as the underlying law favours them.

However a pro-active solicitor may advise the seller of his right to make a capital allowances claim within, broadly, up to a couple of years of the sale allowing them to enter into a Section 198 Election Agreement with the buyer where the capital allowances are agreed to be valued at £1. In reality we see this happen very infrequently at the moment because most conveyancing solicitors do not see it as their role to advise their clients on the benefits of making a capital allowances claim whether representing the seller or the buyer.

What’s happening post April 2012 if there has been a claim?

Where a capital allowances claim has been previously made then a Section 198 Election Agreement may be entered into between the parties agreeing how the capital allowances are distributed between seller and buyer. The seller’s solicitor will normally be trying to value the capital allowances at £1 whilst the buyer’s solicitor should be trying to get them valued at the original valuation when the capital allowances were first pooled (i.e. claimed) by the seller’s accountant.

If agreement cannot be reached between the parties then the buyer has up to a maximum of two years from the date of completion to  refer the matter to the tax chamber of the First-tier Tribunal for determination.  As the underlying law indicates the full benefit of the capital allowances should generally pass to the buyer on completion then sellers would be advised to come to an agreement before this happens or risk facing the time and trouble of dealing with a tribunal and losing all rights to the capital allowances previously claimed. If  a Section 198 Election Agreement is not entered into or a decision not sought from the First-tier Tribunal in time then any future rights to claim capital allowances on the original plant and machinery purchased as part of the sale will be lost not only to the current buyer but any future buyer too.  Potentially devalued because any new purchaser is deprived of making a capital allowances claim at all!

What’s happening post April 2014 if there has been a claim?

Post April 2014 is where there is going to be a major sea change.  Where there has been a previous claim then a Section 198 Election Agreement still may be agreed between the parties. If they cannot agree then the buyer once again can refer the matter to The First-tier Tribunal. If agreement cannot be established then again any future right to claim capital allowances will be lost to the buyer and future purchasers.

What’s happening post April 2014 if there has not been a claim?

Where it is established that the seller could have claimed capital allowances but did not do so then it is imperative on the seller to pool the capital allowances before sale (i.e. formally notify the qualifying expenditure to HMRC in a tax return). This means the seller will need to have the required surveys completed by a specialist, pool the capital allowances into their tax accounts and then enter into a Section 198 Agreement to distribute the capital allowances as agreed. This really needs be agreed as part of the negotiations on sale of the property.

However, what if the above is missed as part of the property sale and purchase? The new owner will not have the right to take it to  the First-tier Tribunal (because the seller must first have claimed) and if they want to get the benefit of any capital allowances they will have to persuade the seller, after the event, to allow a capital allowance claim to be made. The seller will then have to agree for the capital allowances to be pooled into their tax accounts and then enter into a retrospective Section 198 Election Agreement for the capital allowances to be transferred to the new owner.  The problem is, will the original seller be motivated to do this having completed on the sale?  I would suggest there will have to be some financial motivation provided by the new owner to persuade them to do this and even then they might not get the original seller’s agreement. Again if agreement is not reached future rights to claim capital allowances will be lost to all future buyers.

This last scenario shows the potential for those who do not have access to the correct professional advice losing the right to  claim Capital allowances altogether.

John Plumridge BA(Hons) MCIPS

Many thanks to John for writing this guest blog.  You can find out more by contacting John via www.curtisplumstone.com or by e-mail: info@curtisplumstone.com.  We will be happy to arrange a meeting: please contact Graeme Quar if you would like us to set up a meeting.

I always thought that everyone knew that if you exchange contracts and then fail to complete the purchase you will lose your deposit. Well, there have been two interesting cases relating to deposits decided in the High Court and Court of Appeal in the last few weeks.

In the first case, Amble Assets LLP v Longbenton Foods Limited, Amble was a food processing company in administration. The administrators marketed the business for sale as a going concern and accepted an offer from Longbenton. Longbenton was not able to complete immediately and so Amble’s administrators agreed a deferred completion. They permitted Longbenton to occupy Amble’s premises and operate the business on payment of a deposit amounting to 10% of the value of the property and 50% of the value of the processing equipment. The contract provided that the deposits would be forfeit if the Longbenton did not complete the purchase.

Even with a delayed completion, Longbenton was unable to complete the purchase. Amble’s administrators rescinded the sale agreement and forfeited the deposit, following which Longbenton itself went into administration.

Longbenton’s administrators applied to the court seeking the return of the deposit. The analysis of the nature of a deposit by Andrew Sutcliffe QC, sitting as a judge of the High Court, is interesting.

It is often considered that a deposit paid on exchange of contracts for the purchase of property would, but for the fact that 10% of the purchase price is considered to be a “genuine pre-estimate of loss”, be a penalty and therefore unenforceable. However, in the Amble case the judge reviewed many decisions of the courts and came to a different conclusion. This is that a deposit is paid under a contract as a means by which a buyer can demonstrate to a seller that it has a genuine commitment to complete the contract. The forfeiture of the deposit following non-completion arises under a provision in the contract that in that event the deposit will be forfeit, and is not a penalty for breach of contract.

Section 49 of the Law of Property Act 1925 gives the Court the power to order relief from forfeiture, a power which it may exercise if it considers that, in all the circumstances, the amount of the deposit was unreasonable. It seems clear from the judge’s ruling that the courts will resist attempts to argue that the traditional 10% deposit is unreasonable.

The second case is Samarenko v Dawn Hill House Limited, decided by the Court of Appeal on 1 December 2011. In this case contracts had been exchanged for the sale and purchase of a property, but with the unusual provision that the deposit was to be paid at a later date. That date passed. The deposit was not paid. The seller’s solicitors gave notice requiring the deposit to be paid within 7 days, making time of the essence. The deposit was not provided by that deadline, and 5 days later the seller notified the buyer that he accepted the buyer’s repudiatory breach of contract and terminated the contract with immediate effect.

The Court of Appeal agreed with the seller that the buyer’s failure to pay the deposit on time amounted to a repudiatory breach of contract, Lord Justice Lewison stating:

“Since the payment of a deposit at the executory stage of the contract is an earnest (or guarantee) of further performance, it is no surprise that a failure to pay the deposit on time is taken to demonstrate that the buyer is unwilling to perform the contract as a whole”

Cases:

Amble Assets LLP v Longbenton Foods Limited [2011] EWHC 1943 (Ch)

Samarenko v Dawn Hill House Limited [2011] EWCA Civ 1445