Based on the foregoing authorities I am of the opinion that the most that Mr. Akazawa could have acquired in this case was no more than a contract binding Mr. and Mrs. Firestone which required them to give him an option to purchase the land in accordance with the agreement. It did not constitute an interest in the land.
A number of additional arguments were addressed to me on this aspect of the case which I do not need to consider having regard to my findings above.
On behalf of Mr. Akazawa, counsel assembled two arguments in support of Mr. Akazawa’s contract of 9 January 1990 executed pursuant to the rights which he considered he had under the first refusal option. However, both of these arguments rely for their validity on the assumption that the first refusal contract of 5 October is a valid and binding contract supported by consideration. Having found that it is not, I find it unnecessary to deal with the first two arguments.
The third argument advanced by counsel for Mr. Akazawa can be summarized as follows. He says that in fact Mr. Akazawa is the only genuine purchaser for value without notice. He says that on the completion of his contract he paid a deposit of 1.2 million dollars, that he is the only person who has parted with value and that he did so without any prior notice of any contract on the part of the Aga Khan. He accordingly argues that since the Aga Khan has not parted with any consideration the equities are not equal and that his contract of 9 January should prevail. I find myself unable to accept this argument. Finding as I do that Mr. Carnegie and Mr. Broughton entered into a valid binding contract the one agreeing to purchase and the other agreeing to sell on behalf of their principals there clearly was an exchange of consideration and accordingly Mr. Akazawa, notwithstanding the fact that he has actually parted with money, is in no stronger position in relation to consideration.
It follows from my findings that in the first of the above entitled actions the Aga Khan is entitled to an order for the specific performance of his contract of 27 November 1989. That being so Mr. and Mrs. Firestone cannot make title to Mr. Akazawa and his claim for specific performance must fail.
With regard to the date for the closing of the contract I would, in the ordinary way, fix a closing date with the same interval as originally agreed by the parties to the original contract. However, Mr. Akazawa is in occupation of the lands and must have time to vacate the lands. I therefore fix the closing date as six months from today’s date.
With regard to Mr. Akazawa’s contract, he is entitled to damages in lieu of his claim for specific performance. On the assumption that he wishes to proceed with this claim I will give him liberty to mention the matter, on notice to Mr. and Mrs. Firestone, to have a date fixed for the hearing of that issue.
The Aga Khan is entitled to the costs of his action against Mr. and Mrs. Firestone, to be taxed in default of agreement.
The costs of Mr. Akazawa of this hearing will be awarded at the conclusion of his assessment of damages against Mr. and Mrs. Firestone.
There will be a stay on my order in each case for 21 days, the stay to continue in the event of the service of notice of appeal, on condition that if the appeal is unsuccessful the appellants pay interest upon the costs if the costs are, in the final result, awarded against them.