High Court of Ireland Decisions

1. The first is the Plaintiff's motion on foot of a notice of motion dated 7th July, 1997 seeking the following reliefs:-

2. The second motion is the Defendant's motion on foot of a notice of motion dated 6th August, 1997 claiming -

3. There is also a claim for such further or other order as may be necessary in all the circumstances of the case.

4. The substantive action was an action by the Plaintiff, as purchaser, against the Defendant, as vendor, for specific performance. The order dated 15th July, 1994, which was made by Lynch J., was a consent order. It contained first a declaration in the following terms:-

5. There was then a further order by consent that the sum of £95,000 be substituted in lieu of £87,000 in the said agreement for the purchase price.

6. The agreement for sale at the substituted purchase price was not completed and on 9th July, 1996 the Plaintiff issued a notice of motion claiming relief in terms similar to the relief sought on the Plaintiff's motion which is now before the Court. The parties settled their differences at the end of July 1996 on the terms following:-

7. The sale did not close on 9th August, 1996, as agreed. The Defendant issued a notice of motion dated 16th October, 1996 claiming an order setting aside the order for specific performance dated 15th July, 1994 in similar terms to the Defendant's motion which is now before the Court. The Plaintiff retaliated with a notice of motion dated 7th November, 1996 claiming relief similar to the relief which had been claimed in the motion of July, 1996 and the relief which is claimed on the Plaintiff's motion which is now before the Court. On the hearing of the present motions, the Court was told that no action was taken on the Defendant's motion of October 1996 and that the Plaintiff's motion of November 1996 was not proceeded with.

8. There is a factual dispute as to the reasons why the sale was not completed on 9th August, 1996 or subsequently. In broad terms, the Plaintiff's contention is that the Defendant was not in a position to give vacant possession of the property and there were incumbrances affecting the Defendant's title which the Defendant was not in a position to prove had been discharged. The Defendant denies the Plaintiff's assertions and, in broad terms, contends that the sale was not completed because the Plaintiff was not in funds to complete it and that a further complicating factor was a dispute which arose between the Plaintiff and solicitors who had been previously on record for him around November/December 1996. The Plaintiff in turn denies the Defendant's assertions.

9. I consider that the logical approach to this matter is to consider the Defendant's motion first because, if the Defendant is entitled to the relief he seeks, no question can arise of granting to the Plaintiff the relief he seeks. The position is that the order of 15th July, 1994 ordered specific performance of the agreement at the substituted purchase price against the Defendant at the suit of the Plaintiff and the entitlement of the Plaintiff to have the agreement, so varied, specifically performed was affirmed by the settlement reached at the end of July 1996. Accordingly, the question which arises is whether the Defendant has made out a case that something has occurred since the end of July 1996 which entitles the Defendant to be discharged from performance of the agreement on foot of the order of 15th July, 1994. The case made out on the Affidavit evidence filed on behalf of the Defendant is that the delay in completing since the end of July 1996 was all of the Plaintiff's making, that the Plaintiff is trying to hold the property at the agreed price while property values are appreciating and without paying any deposit and without being prepared to pay interest on the purchase money. While, as I have pointed out, the Plaintiff contends that the delay in completion since the end of July 1996 is attributable to default on the part of the Defendant, in my view, the correct approach to adopt in determining whether the Defendant is entitled to the relief claimed on his motion is to consider whether such relief could be granted if the case made out by the Defendant was uncontroverted.

10. The agreement, which was ordered to be specifically performed, in the order dated 15th July, 1994 remained in effect and was not merged in that order: see judgment of MacWilliam J. in Vandeleur -v- Dargan [1981] I.L.R.M. 75. The agreement in question, the agreement of 21st May, 1992, was a document signed by the Defendant and the Plaintiff which consisted of ten lines and in which there was no express provision stipulating a date for completion or making time of the essence for completion or dealing with delay. Therefore, the respective rights and liabilities of the parties in relation to the time for completion were governed by the common law. At common law, the Plaintiff purchaser could only lose the remedy of specific performance and have the contract terminated against him if, after being guilty of unreasonable delay, the Defendant vendor had by notice limited a reasonable time for completion and the Plaintiff purchaser had not completed within that time: see judgment of Kenny J. in Healy Ballsbridge Limited -v- Alliance Property Corporation Limited [1974] I.R. 441. On the case made out by the Defendant, no such notice has been served by the Defendant on the Plaintiff since 9th August, 1996, the closing date agreed at the end of July 1996. Accordingly, in my view, even if the case made out by the Defendant that the delay in completion is entirely attributable to default on the part of the Plaintiff was uncontroverted, the Defendant has not made out a case that the Plaintiff has lost the remedy of specific performance and that the Defendant is entitled to terminate the contract against the Plaintiff now. Accordingly, I hold that the Defendant is not entitled to have the order of 15th July, 1994 set aside.

11. I turn now to the Plaintiff's motion. No order was made by the Court on 29th July, 1996. The order of 15th July, 1994 merely declared that the agreement ought to be specifically performed; it did not require the Defendant to complete the agreement and it did not state any time for completion of the agreement. Accordingly, Order 41, Rule 8 of the Rules of the Superior Courts, 1986 was not and could not have been complied with. I refuse the Plaintiff's application for an order of attachment and committal.

12. As regards the alternative relief sought by the Plaintiff, as judgment was given for specific performance in the order of 15th July, 1994, the case comes within Sections 31 and 33 of the Trustee Act, 1893 ("the 1893 Act"). As the form of deed by way of sub-sale and the map to be annexed to the deed were agreed between the parties at the end of July 1996, if recourse has to be had to the provisions of the Trustee Act, 1893 I consider that the appropriate course would be to appoint a person to convey the property under Section 33 of the 1893 Act. I consider this course should be adopted even though the sub-purchaser with whom the Plaintiff is now dealing is a different sub-purchaser to the sub-purchaser in whose favour it was intended to make the conveyance at the end of July 1996. However, before an order is made under Section 33, I propose that the Defendant should be given an opportunity to complete the sale and execute the conveyance in the ordinary way. Accordingly, I propose making an order directing the Defendant to complete the sale and execute a conveyance in the form agreed at the end of July 1996 to the sub-purchaser nominated by the Plaintiff on or before 12th September, 1997. The Order will provide that, in the event of the failure of the Defendant to complete the sale and execute a conveyance on or before 12th September, 1997, the Plaintiff shall be at liberty to lodge the purchase money amounting to £95,000 in Court to the credit of this suit and the order will further provide for the appointment of the Plaintiff's solicitor, Liam Moran, who is an officer of the Court, to convey the property in the name of the Defendant for all the estate right title and interest of the Defendant therein in the event of the purchase money being paid into Court as aforesaid.

13. There is one further issue to be addressed. In addition to his entitlement to be paid the purchase money under the agreement, the Defendant is also entitled to be paid by the Plaintiff such, if any, interest as he is entitled to at common law having regard to the course of the sale. There is a dispute between the parties as to when, if at all, the Defendant was in a position to furnish vacant possession and an unemcumbered title and this dispute cannot be resolved on the Affidavit evidence. If the Defendant so requests, I will direct that an issue be tried in the proceedings between the Defendant, as plaintiff in the issue, and the Plaintiff, as defendant in this issue, on oral evidence to determine whether -

14. Each party will have liberty to apply.