High Court of Ireland Decisions

1. This is a Motion by the Defendant seeking an Order striking out the Plaintiff’s claim for a specific performance of an agreement for sale under the inherent jurisdiction of the Court. There is no dispute between the parties as to the principles of law applicable being those set out in the judgement of O’Donovan J in Eoin Moran -v- OakleyPark Developments Limited (unreported) the 31st of March 2000. For the purposes of this application I must assume that every fact pleaded or asserted on affidavit by the Plaintiff is correct and can be proved at the trial and that any conflict between matters asserted by the Plaintiff and the Defendant in their respective Affidavits must be resolved in favour of the Plaintiff.

2. The contract in question relates to premises "Glenbeigh", Newtownsmith, Dunlaoghire, Co. Dublin. Originally the Defendant agreed to sell and the Plaintiff agreed to purchase the premises by an agreement in writing dated the 19th of October 1999. However in circumstances which it is not necessary for me to set out it was agreed in correspondence that agreement was lawfully terminated by the Defendant and the same was reinstated on specific conditions and in particular a condition as to completion in respect of which time was expressly made of the essence. On this application the Defendant seeks to show that there was a default by the Plaintiff in completing within the time specified and that upon that basis the Plaintiff’s claim cannot succeed.

3. By letter dated the 10th March 2000, the Plaintiff’s Solicitor wrote to the Defendant’s Solicitor requesting reinstatement of the agreement for sale which it was acknowledged had being lawfully terminated by the Defendant. The letter contained the following clause -

4. By letter of the same date the Defendant's Solicitors acknowledged the Plaintiff’s Solicitor's letter of the 10th March 2000 and set out the terms upon which the contract was reinstated and which terms were accepted by the Plaintiff’s Solicitor on the 11th March 2000. The relevant terms as set out in the Defendants Solicitors letter are as follows:-

5. By 12.00 noon no appointment to complete had been sought or been made by the Plaintiff’s Solicitor. At 12.11 p.m. the Defendant's Solicitor faxed a letter to the Plaintiff’s Solicitor advising them in effect that the agreement for sale was at an end. However, at 12.25 p.m. there was an attendance at the Defendant's Solicitor's offices by a representative of the Plaintiff with a view to completing. The Defendant was unwilling to complete and it is contended that it was entitled to adopt this attitude having regard to the decisions in Union Eagle Limited -v- Golden Achievement Limited ( 1997) 2 All ER 215 and United Yeast Company Limited -v - Cameo Investments Limited and Ors 91 ILTR 13.

6. On the Affidavits filed on behalf of the Defendant an issue arises as to whether the Plaintiff was even at the time of attendance purportedly to complete in a position to do so. Apparently £500,000 of the purchase money was to be provided by a Mr Rhatigan’s Solicitor who joined the Plaintiff's representative, Mr Rhatigan having agreed to purchase the premises from the Plaintiff. There is no evidence that the balance due on closing being a small sum outstanding on foot of the deposit and interest for late closing were available. A further issue may arise as to whether the involvement of Mr Rhatigan represented a breach of the term of the reinstatement that the reinstatement contract should not be capable of assignment.

7. The central issue to arise before me was whether or not the Plaintiff was in breach of the term of the reinstated agreement for completion no later than 12.00 on the 31st March 2000. The Plaintiff points to the failure of the term of reinstatement as set out in the Defendant's Solicitor's letter of the 10th March 2000 to distinguish between 12.00 midday and 12.00 midnight and suggests that 12.00 midnight is the appropriate meaning to be given to the same. The support for this view is given by the reference later on in the same letter to "noon on Monday 13th March 2000" in reference to the time for unconditional acceptance of the offer to reinstate. Again the argument can be made that the letter of the 10th March 2000 ought to be construes contra proferentem. Having considered the matter I am not satisfied that it can be said that the Plaintiff could not succeed on the issue as to the correct interpretation of the letter of 10th March 2000. On this basis alone I hold that the Defendant is not entitled under the inherent jurisdiction of the Court to have the Plaintiff’s claim struck out.

8. An issue also arises as to whether the Plaintiff was entitled to some indulgence in relation to time either as a matter de minimis as occurred in Millichamp -v- Jones (1983) I All ER 267. Having regard to the decision of the Supreme Court Kramer -v- Arnold (1997) 3 IR 43, it is possible that this issue could have been determined on this application where it not for the issue as to the construction of the terms of the reinstatement of the contract. It is however another issue raised by the Plaintiff of which it cannot be said that the Plaintiff must fail.

9. Finally an issue arises as to whether the Defendant was in a position to fulfil his part of the agreement for sale by giving vacant possession. This is an issue which might well have been capable of determination on this application, having regard to the provisions of the agreement for sale general condition 40 (2). It is again however an issue on which it cannot be said that the Plaintiff must fail.

10. In these circumstances the Defendant is not entitled to the relief sought in the notice of motion and the matter must proceed to hearing. However, in all the circumstances this is a case in which the Defendant is entitled to have the claim against him heard without delay. To facilitate this I will give such directions as may be appropriate having heard Counsel.

11. As to the costs of the Motion I will make an Order that the same should be costs and the cause.