High Court of Ireland Decisions

1. Before the first named Defendant, James Farrell (also known as Bobby), met the Plaintiffs, Mr. Bergin and Mr. Brennan, his business was in bad shape. He was a builder in Co. Meath for over 40 years. He did not have a good relationship with the planning department of Meath County Council which had sued him unsuccessfully in relation to a development at Rockfield Estate. He had a manager, James Forde, with whom he had a falling out. According to Mr. Farrell, when Mr. Forde left, he took away books and papers belonging to the second named Defendant, the Company through which Mr. Farrell carried on business. Mr. Forde sued Mr. Farrell and recovered judgment for £9,993.51 on 9th October, 1989. Mr. Farrell said he was unable to defend the action properly because of missing papers. Mr. Forde registered a judgment mortgage on 15th March, 1990 on lands comprised in Folio No. 7210F County Meath being lands at Headfort Place, Kells, Co. Meath which had planning permission for two houses. Mr. Farrell had been the registered owner since 22nd October, 1976.

2. Mr. Farrell's former auditors, the firm of Ernst & Young, had recovered judgment against him for £1,619.08 on 5th February, 1988 and registered a judgment mortgage on the same lands on 2nd November, 1990. The Bank of Ireland also recovered judgment against him on 2nd March, 1989 for £33,732.67 and registered a judgment mortgage on 1st March, 1990.

3. Folio No. 7210F County Meath is the only folio of which I have been furnished a copy so I am unaware of what were the encumbrances on title on other lands belonging to Mr. Farrell. In the Plenary Summons eight folios are mentioned but I have no knowledge of what the state of title of these lands were.

4. The second named Plaintiff, Mr. Brennan, describes himself as a Financial Consultant. In 1991, he was concerned in the "Fairview and Clontarf College", a commercial college which was family owned, in which he worked with his brother and mother. It was disposed of sometime later and Mr. Brennan moved to Ashbourne, Co. Meath.

5. His background was that he was a member of Fianna Fáil and at one time director of elections in Dublin Northeast constituency, a position he described as a very low grade position organising people to go out and canvas, doing mail shots and putting up posters.

6. Mr. Farrell's daughter, Tracey, was doing a course in the college and also did secretarial work for Mr. Brennan. She mentioned to him in November 1991 that her father was a builder and had problems about planning permission. Mr. Brennan said for him to come and see him. Tracey said Mr. Brennan said he knew people who could get planning permission but it would involve paying money. Mr. Brennan denied this.

7. Mr. Farrell came to see Mr. Brennan around 16th November, 1991 and again about 6th December, 1991. He told him about his problems particularly his financial problems. He told him about the two sites he owned at Headfort Place, Kells, with planning permission running out and about the lands at Lloyd, Kells. When he bought them in 1977 there was planning permission for 40 houses which had run out. He said Mr. Brennan said he knew politicians and he would have no problem getting planning permission back. There was no discussion of fees at that stage. Mr. Farrell said he made it clear his money was exhausted due to court cases. He said Mr. Brennan said he would get him fixed up with a loan.

8. Mr. Brennan got in touch with Mr. Bergin, the first named Plaintiff, a Consulting Engineer, who was recommended to him. Both Mr. Brennan and Mr. Bergin met Mr. Farrell on 3rd January, 1992. Mr. Bergin said he would give a preliminary view. He would look at the situation without obligation and make a proposal. Mr. Farrell's assets were identified; Balreask (Navan) (70 acres) (which the County Council were interested in purchasing), owned jointly with a Mr. Burke; Lloyd (Kells) (11 acres); and Headfort Place (Kells) (2 sites). He said Mr. Farrell said he had no money and would pay later when he got it.

9. The pity is that no firm arrangement about payment was made at the beginning.

10. The first steps taken were in connection with the lands at Lloyd with the lapsed planning permission. The lands had been dezoned to agricultural land although planning permission for one house existed dated 10th October, 1989.

11. Mr. Farrell gave Mr. Brennan a letter dated 21st May, 1992 to say he would sell four sites to him for £15,000 subject to planning permission. There was a dispute as to whether it was four sites at £15,000 each or four sites for £15,000. Mr. Farrell said each site would be worth £30,000. Mr. Brennan said he did not know what each site would be worth.

12. Then Mr. Farrell signed a letter on 5th June, 1992 appointing Mr. Brennan sole agent for the lands at Lloyd. This letter is not one of the documents being sued on. In July 1992, Mr. Farrell got a new Accountant, Mr. Lionel Mackay.

13. The first planning application for 51 houses for these lands was prepared and lodged by Mr. Bergin on 6th July, 1992. A cheque for £1,623 (dated 19th June, 1992) for the planning permission (which should have been £1,632) was paid by Mr. Farrell but Mr. Brennan claimed that he paid it. According to his diary he said he personally paid £1504 on 6th July 1992 but I have no doubt that Mr. Farrell paid the cheque, a photocopy of which was produced in Court. The cheque was £9 short and the County Council wrote to Mr. Bergin for an additional £9 which he paid on 20th July, 1992. The planning permission was refused on 26th August, 1992 on the grounds that it contravened the development plan, it was outside the drainage area and a pumping station would not be allowed.

14. This refusal was appealed to An Bord Pleanala but the appeal was withdrawn later (1st February, 1993).

15. In relation to the Balreask lands, Mr. Brennan wrote on 15th October, 1992 to Mr. Farrell referring to the County Council wanting to purchase the lands at Balreask from him and Mr. Burke. He objected to Mr. Farrell meeting the County Council representatives with Mr. Burke without him and he said he expected to be paid.

16. A second planning application for lands at Lloyd for 51 houses, which was much the same as the first, was lodged on 21st October, 1992 in which Mr. Bergin said he concentrated on the engineering aspects. Mr. Farrell paid the cheque for £1,632 (dated 10th October, 1992) although it was claimed by Mr. Bergin that he and Mr. Brennan paid it. I have no doubt that Mr. Farrell paid it. A photocopy of it was produced in Court. Mr. Brennan was canvassing County Councillors to get sufficient signatures for a Section 4 motion in order to authorise a material contravention of the development plan to take place. On 9th December, 1992, Mr. Brennan said he drove over 300 miles to get sufficient signatures for his Section 4 motion for a meeting on 4th January, 1993. But prior to that on 7th December, 1992 permission was refused for 51 houses for the same reasons given in the earlier refusal of 26th August, 1992 with an additional reason that there had been no change of circumstances in the meantime. This pre-empted the Section 4 motion for the County Council meeting on 4th January, 1993.

17. Mr. Bergin made an application for a refund of £1,224, a proportion of the planning fee, on 16th December, 1992.

18. The third application for planning permission was made on 16th December, 1992 for 47 houses, the fee for which was £1,504. Mr. Bergin said that this was paid by Mr. Farrell. Mr. Farrell said he did not want them to make a third application. He said he could not afford it and did not pay for it though he said he co-operated. I accept he did not pay for it. It was probably paid by Mr. Brennan as this is the exact amount he said he paid in July 1992. Notice of Intention to propose a Section 4 Motion at the County Council meeting on 1st February, 1993 was lodged. Apparently nothing was achieved at that meeting.

19. Mr. Brennan continued to canvass County Councillors and T.D.s. Mr. Bergin met the County Council officials to try to persuade them that a pumping station for sewage was a viable option. On 2nd March, 1993, Mr. Bergin applied for the period of consideration to be extended to 16th May, 1993 and prepared a submission (12th March, 1993) for members of the Meath County Council. However, on 12th March, 1993, the application for 47 houses was refused. On the same day, Mr. Bergin applied to withdraw the application of 16th December, 1992 and applied for a refund of £1,504. This was refused but a refund of £1,224 was made later on 16th July, 1993.

20. The rezoning of the lands was to be discussed at a meeting of the Kells area Committee in July 1993. On 16th July, 1993, the County Secretary prepared a report to the members as to why the lands at Lloyd should not be rezoned. Mr. Bergin said he did a circuit of County Council members as there was little point in talking to the engineer.

21. Then on 20th July, 1993, Mr. Farrell was put in prison for the debt owed to Mr. Forde which at this stage had been reduced to about £4,500. He said he wanted to expose the wrongdoing from prison. Mr. Brennan and Mr. Bergin persuaded him to come out and build. They both lent him money to help pay the debt and get started on the building although Mr. Farrell said he did have about £2,000 in the bank. Mr. Brennan and Mr. Bergin each lent Mr. Farrell £7,150 paid in £1,000 instalments on 3rd August, 6th August, 25th August, 31st August, 11th September, 17th September and 6th October, 1993, with a final payment of £150 each on 8th November, 1993. Mr. Farrell said they had agreed to lend him £10,000 each but he thought they had difficulty in coming up with it all.

22. Mr. Bergin advised Mr. Farrell to get substantial works completed before the planning permission ran out on 14th December, 1993 so that a renewal could be applied for. The sites were laid out on 25th August, 1993 and a commencement of building notice served. Building to the top of the walls was completed by 13th December, 1993. Mr. Bergin applied for an extension on that date and the extension was granted on 20th January, 1994 for a year to 13th January, 1994.

23. Meanwhile, after the third planning permission for the lands at Lloyd was turned down, Mr. Bergin did a topographical survey and drew up another plan restricted to 15 houses which could be drained by gravity without recourse to a pumping station. This involved getting a way-leave from adjoining factory premises. Mr. Bergin met with the Managing Director of Southborough factory and offered to cede land in return for a way-leave. Mr. Bergin wrote to the planning department on 26th September, 1993 to say that the undersigned (Bergin, Brennan and Farrell) irrevocably agreed that in the event of the elected members deciding to rezone the lands "residential" in the present review, any subsequent planning application would be restricted to a maximum of 15 dwellings on a layout similar to that shown on plan 3165/10A (which was also signed by all three). It was stated the undertaking would also be binding on any successor in title. This had the effect of sterilising the front half of the lands. Mr. Farrell said he could not remember the red line on the plan showing the sewage pipe. However, he said the plan backfired when they could not get a way leave in writing from the factory manager. Receipt of the letter was acknowledged on 26th October, 1993 and Mr. Bergin was informed that the submission was noted and would be considered before the final plan was adopted. (In the events which happened, the rear portion of these lands were not rezoned until May 1995).

24. With regard to the Balreask lands, Mr. Burke, co-owner with Mr. Farrell, wrote to the County Manager on 5th November, 1993 offering to sell 35 acres for £35,000 or 70 acres for £500,000. On 24th January, 1994, Mr. Farrell wrote to the County Council to confirm agreement for the sale of 70 acres at £500,000 as per the letter of 5th November, 1993. (This offer was not taken up and no sale took place to the County Council).

25. Then came two of the letters on which the Plaintiffs are relying.

26. The first letter dated 25th January, 1994 is as follows:-

27. So that there will be no misunderstanding, I set out hereunder our agreement in respect of the payment to be made to Roderick Brennan and myself (Ronald Bergin) in return for professional services rendered in obtaining planning permission for residential development on the land at Lloyd.

28. Both Roderick Brennan and myself will each receive the sixth and seventh house constructed on this site, each house having a market value of £72,000 in full discharge of our fees.

29. The following four individuals, Bobby Farrell, Thomas Farrell, Roderick Brennan and Ronald Bergin will each contribute £20,000 towards the development fund and will share equally in the profits of the development. The value of the sites at £160,000 in total will also be paid to Bobby Farrell as each sale is closed.

30. I trust that this is an accurate account of our agreement and I would request that you confirm the agreement to this proposal by signing the appropriate section below."

31. At Mr. Farrell's request Mr. Brennan added in writing, "Bobby Farrell will get house, number one." It was signed by Mr. Bergin and Mr. Brennan and Mr. Farrell countersigned, "I confirm my agreement to the above terms".

32. By another letter also dated 25th January, 1994, Mr. Bergin wrote as follows:-

33. For clarity, I confirm our agreement that on receipt of the payment from the Local Authority in respect of the sale of the lands at Balreask, Trim Road, Navan, or on the closing of the sale of the two houses at Headfort Place, which ever is the earlier, you will pay the sum of £20,000 plus VAT to myself (Ronald Bergin) and £20,000 plus VAT to Roderick Brennan in repayment of the monies already loaned to you and in respect of professional services rendered relating to the development of the sites at Headfort Place.

34. These sums together with any other out of pocket expenses to be discharged within 24 hours of receipt of the cheque payment from the Local Authority in respect of the lands at Navan or from the purchasers in respect of the houses at Headfort Place. I trust that this is an accurate account of our agreement and I would request that you confirm your agreement to this proposal by signing the appropriate section below."

35. It was signed by Mr. Bergin and Mr. Brennan and Mr. Farrell countersigned, "I confirm my agreement to the above terms".

36. Mr. Farrell said the agreement to pay £20,000 was on condition that each lent him £10,000 which was denied by both of them.

37. The money lent by Mr. Bergin and Mr. Brennan was not sufficient to develop the Headfort Place sites. Mr. Farrell said Mr. Brennan made efforts to get money for him from a couple of banks and building societies but was unsuccessful. Eventually Mr. Farrell himself, through CIF (the Builders Federation) got £50,000 from AIB to complete the two houses at Headfort Place.

38. With regard to the Balreask lands, on 20th January, 1994, Aidan O'Driscoll, the Architect for Mr. Burke and Mr. Farrell, wrote to the County Council concerning the development by Eden Cross on adjoining lands. Eden Cross had been granted planning permission for 160 houses in July 1992. Mr. O'Driscoll said the surface water drainage system was causing problems and leading to flooding. He asked the Council to check if they were within their planning permission. This trouble had been brewing since September 1993 when Mr. Steen, Mr. Burke's solicitor, contacted the builders on site. On 8th February, 1994, Aidan O'Driscoll wrote to Mr. Terry, the Engineer for Eden Cross.

39. In March 1994, Mr. Farrell contacted Mr. Bergin and Mr. Brennan about the surface water drainage. There was a meeting on 18th March, 1994 between Mr. McAllister, (Mr. Farrell's solicitor, who was dealing with Headfort Place), Mr. Bergin, Mr. Brennan and Mr. Farrell to review the situation regarding the surface water drainage discharge at Balreask.

40. However, Mr. Burke and Mr. Burke's solicitor, Mr. Steen, were dealing with Eden Cross. Mr. Burke negotiated the way-leave and agreed the map and also agreed the amount to be paid - £45,000.

41. Mr. Steen drafted the way-leave document and Mr. O'Driscoll, the Architect, set out the way-leave. There was a meeting in Mr. Steen's office on 22nd March, 1994 at which Mr. Burke, Mr. Farrell and Mr. Bergin were present.

42. Mr. Burke said the only time he met Mr. Bergin was when he showed up in Navan. He said he was not needed as the topic was finalised; the size of the pipes and the direction of the pipes was agreed. He remembered that Mr. Bergin suggested collecting the plan/drawing the next day.

43. Mr. Bergin did collect a map from Mr. McCarthy, Engineer, the next day on 23rd March, 1994. But Mr. Steen said he already had a copy and that it was Mr. Bergin himself who wanted a copy. On 30th March, 1994, Mr. Steen faxed the way-leave agreement to Mr. Bergin. On 31st March, 1994, Mr. Bergin wrote to Mr. Steen suggesting amendments. Mr. Steen showed this letter to Mr. Burke and Mr. Farrell and on instructions took no further action. The way-leave was signed on 6th April, 1994.

44. Mr. Farrell claims he made a payment of £6,000 cash out of the monies he got from the way-leave. Mr. Farrell said it was £2,000 each for Mr. Bergin and Mr. Brennan and £2,000 for Mr. Bertie Ahern, T.D., at the request of Mr. Brennan as a contribution towards election expenses. Mr. Brennan denied this and said they each got £3,000. I found Mr. Bergin's evidence about payments confused. On cross-examination about payments in 1994 he denied any knowledge of any political payment (which I accept) but he said re. 1994 that £2,000 in cash was given and it was for expenses.

45. In relation to the lands of Lloyd, in November 1994 Mr. Murray, a Consultant Town Planner, made a submission on behalf of a Mr. Gavigan to Meath County Council in respect of proposed amendments to the Draft Revisions of the development plan for the environs of Kells in relation to lands belonging to Mr. Gavigan, which were situated further out the road from the lands of Lloyd. He had applied for and been refused outline planning permission by the County Council and by An Bord Pleanala. Mr. Gavigan wanted to construct a Nursing Home and was supported by the Eastern Health Board, local doctors and the local Sisters of Mercy. There was no public main drainage available but Mr. Murray submitted the amount of land available should allow the provision of a private treatment facility sufficient to meet the level of sewage treatment required. The application was to zone the lands for use of community care facilities. The letter was acknowledged on 2nd November, 1994.

46. By January 1995, Mr. Farrell himself had organised finance with the AIB and a charge for present and future advances (stamped to cover up to £50,000) was registered on 16th January, 1995 on the folio comprising the Headfort Place sites.

47. In May 1995 the portion of the lands of Lloyd at the rear of the site were rezoned residential - Mr. Murray resubmitted his application to rezone the Gavigan land.

48. On 27th May, 1995, a letter on Mr. Farrell's note paper typed up by Mr. Brennan said he wished to appoint Mr. Brennan and Mr. Bergin to act as his agent in respect of all matters relating to the land at Balreask, Navan, Co. Meath, for which a fee of 10% of the sale price would be paid within seven days of completion of the sale. Mr. Farrell said they came to his house and asked if he would give them 10% if they sold the lands and he agreed. He said it was 10% of his share. Mr. Brennan said the agreement did not mean they had to sell it themselves. Mr. Bergin at one stage in his evidence did say Mr. Farrell said if he (Mr. Bergin) could sell it, he would give him 10%. Both Mr. Bergin and Mr. Brennan said it was 10% of the total sale price.

49. As the two houses at Headfort Place were nearing completion, Mr. Farrell signed "an irrevocable letter of authorisation" dated 13th August, 1995 to Mr. McAllister, his solicitor, to pay £7,150 each to Mr. Bergin and Mr. Brennan in repayment of loan. This was drafted and typed by Mr. Brennan on Mr. Farrell's note paper. This is the letter mentioned in the Statement of Claim. Negotiations for the sale of the two houses was progressing from November 1995.

50. On 1st April, 1996, Mr. Bergin certified compliance with the planning permission. The Auctioneer for the two sales organised by Mr. Brennan was Mr. Ussher. The first sale closed about the 4th of April, 1996. The second sale closed on 26th April, 1996.

51. Two cheques for £7,150 from Mr. McAllister were paid to Mr. Brennan and Mr. Bergin on that day.

52. Mr. Farrell claimed that £10,000 in cash from the first sale and £10,000 in cash from the second sale were collected by the Auctioneer organised by Mr. Brennan and handed over to him at the closing of the second sale. He claimed this money went through his books. He said on the same day he paid £6,850 in cash in the car park of the Ardboyne Hotel to each of Mr. Brennan and Mr. Bergin and it was agreed to be in full satisfaction of monies owing. Mr. Brennan agreed that the Auctioneer had collected two sums of £10,000. He said £2,000 in cash was paid to himself and to Mr. Bergin in the car park of the hotel. He said £1,400 was paid to each of them at Mr. Farrell's home two to three weeks previously.

53. Mr. Brennan said he was paid £7,500 for expenses made up of £3,400 (from Headfort Place); £3,000 (from the water drainage money); half of £2,000 and half of £300. He also said that in his client account he was going to give Mr. Farrell credit for expenses paid and the money would be deducted from the lump sum. No such client account was produced in Court. Mr. Bergin also referred to a statement of account and said Mr. Farrell was given credit for all payments made which were set out clearly. No such statement of account was produced in Court.

54. When Mr. Bergin was asked in cross-examination about payments in April 1996 other than the cheque for £7,150, he said they received £2,000 each on the sale of the houses and before that £1,400. He also said when they asked for their money on the sale of the houses Mr. Farrell said that was all he had.

55. In November 1996, there was a revision of the development plan for Kells which allowed the development of portion of Mr. Gavigan's land for community care facilities. The portion of the lands at Lloyd which had been excluded from residential zoning shown on the Kells plan adopted in May 1995, the adjoining land with road frontage and some land on the opposite side of the road adjoining Mr. Gavigan's land, were now zoned residential. In order to service the lands for the Nursing Home, the County Council permitted a pumping station.

56. Nearly two years later on 20th July, 1998, planning permission for 41 houses on all the lands of Lloyd was granted to Mr. Farrell because he could make a connection with the pumping station for sewage disposal.

57. Meanwhile in relation to Balreask some of the lands at Balreask (c.25a) were rezoned residential in 1996. This was due to an application made earlier by Mr. Burke's architect, Aidan O'Driscoll. Mr. Burke said they had asked for 40 acres but only 25 acres came through. Mr. Burke told Mr. Farrell who told Mr. Bergin and Mr. Brennan who were unaware of rezoning. Mr Bergin wrote on 21 June, 1996 to the County Council submitting that a further 35 acres should be rezoned. This was the only written application in relation to these lands by Mr. Bergin or Mr. Brennan. Both Mr. Bergin and Mr. Brennan paid visits to the County Council offices but their efforts were unsuccessful.

58. Then Mr. Farrell wrote on 31st October, 1996 to Mr. Brennan saying he had taken independent advice and he expected the lands at Balreask would have been sold by 1995. He said it was agreed at the time a figure of £100,000 would be payable on the sale of the land and to avoid any misunderstanding at a later stage, he felt it would be in everyone's interest to have an agreement drawn up with their solicitors and payment made through them.

59. Mr. Brennan replied on 6th November, 1996 refuting the contents of the letter and referring to the written agreement of 27th May, 1995. He said he spoke to him on 6th November and he said Mr. Farrell said he wanted to withdraw the letter and contents.

60. Mr. Bergin wrote on 8th November, 1996 that the fee was not limited to a sum of £100,000. Mr. Farrell did not reply to either of these letters.

61. Mr. Farrell said Mr. Brennan said he had a client and wanted a further week or fortnight. He told him to get the clients to go to his Solicitor but this did not happen. He denied he said anything about withdrawing anything.

62. During 1997, Mr. Brennan and Mr. Bergin were making a concerted effort to sell the lands at Balreask. On 16th June, 1997, various letters were sent off to prospective purchasers. On 10th July, 1997, Soltan Limited made an offer of £2 million which Mr. Brennan recommended to Mr. Farrell. Mr. Farrell refused the offer as his partner Mr. Burke had received an offer of £2.7 million.

63. On 17th July, 1997, Mr. Bergin wrote to Mr. Farrell asking him to confirm £3 million was acceptable. On 8th August, 1997, Mr. Bergin again circularised prospective buyers. Then, on instructions from Mr. Burke and Mr. Farrell, an auction was advertised for 23rd September, 1997 by joint agents Messrs. Smiths and Messrs. Jackson Stopps and McCabe. The property failed to sell at auction.

64. On 21st November, 1997, the plenary summons issued which was amended on 12th February, 1998. The lands of Balreask were sold privately by Mr. Burke and Mr. Farrell for £2.46 million on 23rd December, 1997.

65. The Plaintiffs claim specific performance of:-

66. There is an alternative claim on quantum meruit.

67. The Defendants plead in relation to the agreements of 21st May, 1992 and 25th January, 1994 regarding Lloyd that there is no memorandum sufficient to satisfy the Statute of Frauds. Concerning the agreements of 27th May, 1995 and 13th August, 1995, they claim payments were made as follows:-

68. £7,150 per cheque on 26th April, 1996;

69. £2,000 in cash in March 1994; and

70. £50 to Mr. Brennan by cheque in February of 1996.

71. It should be noted that the Plaintiffs did not claim specific performance of the second agreement of 25th January, 1995 dealing with Headfort Place which was not pleaded with the result that it was not referred to in the Defence. It was however referred to in replies to the Notice for Particulars. The case proceeded throughout on the basis that the agreement of 25 January, 1995 re. Headfort Place was included in the Plaintiffs' claim and I have so treated it.

72. The precise amount claimed on a quantum merit in the replies to Notice for Particulars is stated to be:-

73. Also in the replies to particulars the full financial extent of the Plaintiffs' claim is stated to be £905,200 plus VAT to each of the Plaintiffs having allowed credit of £7,550 for monies previously paid. No details of how this sum of £7,550 was made up was included in the pleadings furnished although the replies refer to an Appendix A.

74. It should be stated straight away that Mr. Brennan is not registered for VAT and, accordingly, can not make any claim for VAT on his account.

75. I am satisfied that Mr. Brennan was taken on by Mr. Farrell because he said he knew politicians who could get planning permission. It reflects no credit on either of them that this was the case. However, there is no evidence to suggest any payment of "backhanders" to any local county councillors or the county council officials in order to achieve a Section 4 Motion. Politicians of all parties were canvassed but Mr. Brennan's efforts were singularly ineffective. The rezoning of the rear of the lands of Lloyd in May 1995 could not be translated into planning permission because the gravity feed depended on a way leave through adjoining factory premises which was not forthcoming. The rezoning in November 1996 was due to the representations made in respect of planning permission for the nursing home for community purposes and the rezoning of the front portion of the lands at Lloyd was a fortuitous consequence of the rezoning of the Gavigan lands.

76. Another reason Mr. Brennan was taken on was that he told Mr. Farrell he would get him fixed up with a loan - something which he failed to achieve.

77. I accept Mr. Burke's evidence that all the work was done before Mr. Brennan and Mr. Bergin became involved. Their input was negligible, contrary to what they claimed. Mr. Farrell said he paid £6,000 in all, £2,000 each to Mr. Bergin and Mr. Brennan and he said Mr. Brennan asked for £2,000 for a political contribution to Mr. Bertie Ahern. Mr. Bergin said he got £2,000 for expenses in 1994. Mr. Brennan said they both got £3,000. While it is difficult to be sure, on the balance of probabilities and on my view of the credibility of Mr. Brennan, I believe Mr. Farrell's evidence. I hold that Mr. Bergin got £2,000 and Mr. Brennan got £2,000 plus £2,000. What he did with the extra £2,000, I do not know.

78. There is no conflict that Mr. Bergin and Mr. Brennan each got £7,150 by cheque from Mr. McAllister, the solicitor, on 26th April, 1996 in repayment of the money lent. In addition, Mr. Farrell said he paid them £6,850 cash each. Mr. Brennan says he received £3,400 in cash, i.e. £2,000 after the sale and £1,400 two or three weeks previously. Mr. Bergin also says he got £3,400 in cash.

79. Mr. Brennan's diary for 4th April, 1996 refers to his organising the sale for Site 1B and states that he only received his money back and that £12,850 was not paid. On his own evidence in Court this is patently untrue. There is no entry on 26th April, 1996 when the second sale was closed and the £7,150 was in fact paid by the solicitor. There is no mention in his diary of the payment of any cash even the £3,400 which he admits he got.

80. There is no entry in Mr. Bergin's diary for 26th April, 1996 of attending the closing of the sale in Navan, when the solicitor's cheque was handed over and of being paid money in the hotel car-park.

81. Mr. Brennan agreed the Auctioneer gave £20,000 to Mr. Farrell. In fact, it was he who organised the Auctioneer to retain the £10,000 in cash from each sale.

82. In the Replies to the Notice for Particulars (No. 9(b)), the Plaintiffs say that the only sum repaid on the closing of sale of the two houses was £7,150 each. On their own evidence that is untrue.

83. I can think of no reasonable explanation why Mr. Bergin and Mr. Brennan, even if they had received £1,400 in the short time previously, would have accepted without protest a payment of £2,000 each leaving Mr. Farrell with £16,000 in cash. They did not explain why they did not insist on getting more. I accept Mr. Farrell's account and I hold that he paid £6,850 in cash to each of them at the hotel car park.

84. I think they probably did since they made no complaint at that time either to Mr. Farrell or to the solicitor that they were still owed money for the Headfort Place agreement. At this stage the sale of the Balreask lands to the County Council had fallen through so the fund for paying Mr. Brennan and Mr. Bergin had to come out of the purchase monies from the two houses.

85. Mr. Farrell said they came to his house to ask him and he agreed to give 10% of his share if they sold the land. Mr. Bergin at one part of his evidence said Mr. Farrell said that if he (Bergin) could sell it, he would give him 10%. Mr. Brennan said the agreement did not mean that they had to sell.

86. In my opinion, the agreement was dependent on Mr. Brennan and Mr. Bergin selling the land. This is borne out by their extensive and exhaustive efforts to sell the lands themselves. Also, there was no way the work they performed in respect of the Balreask land could justify a payment of 10% of the sale price if they did not achieve a sale. The rezoning was not due to their efforts. It was Mr. O'Driscoll who applied on behalf of Mr. Burke. The written application by Mr. Bergin in respect of 35 acres was unsuccessful. Further light is thrown by two entries in Mr. Brennan's diary where he said:-

87. If the agreement really was that they got 10% regardless of who sold the lands, neither of these diary entries make sense. I prefer Mr. Farrell's account and I hold that the agreement of 27th May, 1995 was made on the basis that 10% was payable if the lands were sold by Mr. Brennan and Mr. Bergin. The letter written by Mr. Farrell on 31st October, 1996 is equally consistent with his claim that money was payable if a sale was achieved by Mr. Bergin and Mr. Brennan. It is not necessary to decide if it was 10% of the purchase price or 10% of Mr. Farrell's share of the purchase price.

88. I now turn to the actual claims made:-

89. It is clear that this was made in the context of there being 51 sites or thereabouts. The first application for planning permission lodged 6th July, 1992 was for 51 houses. After three planning applications were turned down (the third for 47 houses) and attention was concentrated on a proposed development of 15 houses, this agreement was superseded by the letter of 25th January, 1994 relating to the lands at Lloyd. This was in any event conceded by Counsel who did not pursue this claim.

90. The letter was drafted in the context of the undertaking to the County Council dated 29th September, 1993 to limit any application for planning permission to 15 houses but where no rezoning or application for planning permission for 15 houses had taken place. The Plaintiffs' plead acts of specific performance, in particular, the agreement with the Meath County Council of 29th September, 1993 but this predates the letter of 25th January, 1994 and is therefore past consideration. The Lloyd letter cannot be divided in two. The agreement to give the 6th and 7th house (valued at £72,000) to Mr. Brennan and Mr. Bergin cannot be divorced from the agreement to divide the profits between each of the four persons contributing £20,000 less an allowance for sites to be paid to Mr. Farrell and Mr. Farrell to get house No.1. The prior undertaking of 29th September, 1993 negotiated by Mr. Brennan and Mr. Bergin could not be translated into planning permission because the gravity feed for sewage depended on a way-leave through adjoining property which was never forthcoming. Rezoning did not occur until May 1995 for the area referred to in the 1993 undertaking to the County Council. Mr. Farrell was accused of non co-operation in failing to apply for planning permission in 1995 for the 15 house development. But, quite apart from the fact that he did not want to have nearly half of the 11 acres sterilised, it would not have been possible for him to apply for planning permission since he did not own the necessary way-leave. The Lloyd agreement of 25th January, 1994 which was expressed to be for services rendered in obtaining planning permission could not be implemented.

91. In relation to these sites, I found it extraordinary that the two advisers let over 18 months pass while the planning permission was running out without (apparently) urging Mr. Farrell to put everything he had into getting these houses finished instead of letting him spend his money on futile planning applications for the Lloyd lands particularly as Mr. Bergin said they very quickly appreciated about the 2 sites at Headfort Place that the work should be done as soon as possible. However, that being said, they did lend him money (which was repaid) and Mr. Bergin gave undoubted assistance in the building. At the end he certified compliance with the planning permission. As I have already held, Mr. Brennan and Mr. Bergin were each paid £7,150 in return for money lent and £6,850 in cash in settlement of monies due on foot of the agreement. But I do not accept that it was part of the agreement that each of them had to lend him £10,000 in order to get back £20,000. The last part of the loan in the amount of £150 each was made in early November 1993. There is no evidence to suggest that Mr. Farrell asked them for any further loans. When the letter was drafted at the end of January 1994 there is no mention of any further money to be lent. Counsel for the Plaintiffs submitted that the rule in Pinnels case applies (Clarke: Contract Law in Ireland, 3rd Edition, page 51). If a liquidated sum is owed by a creditor, a promise by a debtor to take a lesser sum in full satisfaction of the larger debt will not bind the debtor. No authority to the contrary was cited on behalf of the Defendants. Therefore, the sum of £6,000, the balance of £20,000 having deducted £7,150 and £6,850 is owed to each of Mr. Bergin and Mr. Brennan. Mr. Bergin is entitled in addition to VAT on £6,000.

92. As I have already held, this agreement was dependent on Mr. Brennan and Mr. Bergin actually selling the lands which they did not do. It was therefore not performed by them. Their claim to be entitled to a one tenth share in the Defendants' lands never had any basis and the registration of a lis pendens on the lands at Balreask was very dubious. The lis pendens was only removed to allow the sale of the lands to be completed by the lodgement of over £200,000 on joint deposit to await the outcome of this trial. This effectively created a fund to answer the Plaintiffs' claims which they would not otherwise have been entitled to.

93. It was never the intention of the parties that either Plaintiff would be entitled to claim for hours spent and expenses. For this reason I did not find the evidence of Dr. Meehan, the planning consultant, or Mr. O'Kennedy, the chartered accountant, to be of any great assistance.

94. When one tries to analyse the dealings between the parties, I think it is clear that Mr. Brennan and Mr. Bergin agreed to act for Mr. Farrell on the basis that he would pay them when he had money. The remuneration was to take into account the work done and results achieved and whether the value of the lands was enhanced. I think Mr. Brennan and Mr. Bergin were very optimistic that the Lloyd lands could be turned around and rezoning achieved. Their hopes turned out to be exaggerated. The rezoning of part of the lands in May 1995 could not be availed of to get a planning permission. In the end, the rezoning of the entire lands in November 1996, in my opinion, did not depend on their efforts but on the rezoning for community purposes of the land for the nursing home. In 1998 Mr. Farrell got planning permission in respect of the entire lands due to the sewage pipe provided for the nursing home. Any money for work done for the Lloyd lands must reflect the fact that no planning permission resulted or could result from the efforts of Mr. Bergin and Mr. Brennan.

95. Mr. Bergin's work throughout was as a professional engineer and an authority on planning. He gave undoubted assistance in relation to the Headfort Place sites which is more than can be said for Mr. Brennan. He did considerable work in preparing the first planning application for 51 houses at Lloyd although it was doomed to failure because it was contrary to the development plan. The second application which was basically a duplication was equally doomed to failure because the Section 4 Motion was not lodged in time. The third application was a slight variation. Mr. Bergin spent considerable time in trying to convince the County Council Officials that a pumping station for sewage was a viable option for the Lloyd lands which they did not accept. His work in relation to the Balreask lands consisted of trying to sell the lands to the County Council or to the IDA. When that failed there were some representations to County Council officials. When 25 acres were rezoned on foot of Mr. O'Driscoll's application he made a written application to rezone a further 35 acres which was unsuccessful. It is not possible to estimate the time spent by Mr. Bergin in relation to the Lloyd and Balreask lands by reference to his diary since not all the time spent in County Meath was referable to Mr. Farrell's business; some was referable to Mr. Bergin's own business. Mr. Bergin is entitled to be paid on a professional basis. Since his remuneration amounts to £12,850 for Headfort Place plus £2,000 in relation to Balreask he would, in my opinion, be adequately compensated for all work undertaken by a further payment of £20,000.

96. Turning to Mr. Brennan, his efforts on behalf of Mr. Farrell were particularly ineffective. He did not succeed in getting any finance organised. He did not succeed in organising a Section 4 Motion until the third planning application, and this was ineffective. It seems to me that he was anything but a financial expert and does not merit being paid on a level appropriate to a consultant.

97. It is not possible to estimate the work done and time spent by Mr. Brennan by reference to his diaries which I consider to be unreliable, inaccurate and self-serving. Some entries are untrue and others have clearly been made afterwards, though he said entries were made at the time or shortly afterwards, for example:-

98. Since Mr. Brennan's remuneration amounted to £12,850 and £4,000 (which may have been reduced by a political contribution), it seems to me that he would be adequately compensated for the efforts he put in on behalf of Mr. Farrell by a further payment of £10,000.

99. This means that Mr. Bergin is entitled to a decree for £20,000 plus £6,000 plus VAT on both sums and Mr. Brennan is entitled to a decree for £10,000 plus £6,000 without VAT.