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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Globe Entertainments Ltd & anor -v- The Pub Pool Ltd (in receivership) & ors [2015] IEHC 115 (24 February 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H115.html
Cite as: [2015] IEHC 115
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Judgment
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Neutral Citation: [2015] IEHC 115 THE HIGH COURT COMMERCIAL 2014/4546P
2014/68COM BETWEEN GLOBE ENTERTAINMENTS LTD & SEAN DOYLE PLAINTIFFS AND
THE PUB POOL LTD (IN RECEIVERSHIP), TOM KAVANAGH & ULSTER BANK IRELAND LIMITED DEFENDANTS JUDGMENT of Ms. Justice Costello delivered the 24th day of February 2015 1. This is an application for specific performance of an alleged contract for the sale of premises known as The Globe and Rí-Rá nightclub, 11 South Great George’s Street, Dublin 2 (“the Premises”) and of an alleged agreement to compromise the personal liabilities of the second named plaintiff to the third named defendant for the sum of €5,000 together with various other ancillary reliefs. Background 3. The first named defendant was in default of its repayment obligations and by a deed of appointment dated 27th March, 2009, Ulster Bank appointed Mr. Tom Kavanagh of Kavanagh Fennell, the second named defendant a receiver and manager over the premises (“the Receiver”). 4. The Premises were placed on the market by the Receiver in April/May, 2009 with CBRE as selling agents. It immediately became apparent that there were two major obstacles to selling the premises. Firstly, there was a general difficulty of obtaining funding in the prevailing economic circumstances. Secondly, there was the difficulty of obtaining the consent of the landlord, Mr. Conlon, to the assignment of the leasehold interest in the Sublease to any purchaser. 5. The second named plaintiff (“Mr. Doyle”) has worked in the pub business all of his adult life. He bought his first pub at the age of 24 and he has bought many pubs since then. He was a 40% shareholder in the Thomas Read Group which was formerly involved in running many large and successful pubs throughout Dublin. At all material times Mr. Doyle was interested in acquiring the Premises once they were put up for sale in 2009. In addition to the difficulties of acquiring funding and acquiring the consent of Mr. Conlon to the assignment of the Sublease, Mr. Doyle had the added problem that he had very significant personal bank liabilities which required to be resolved before he could complete any purchase. In particular there was evidence that he owed Ulster Bank approximately €1 million in his personal capacity and he owed approximately €2 million on foot of a personal guarantee. There was evidence that he owed Bank of Scotland (Ireland) Ltd. approximately €72 million. 6. Mr. Doyle proposed to borrow funds from Ulster Bank for the purpose of both purchasing the Premises and resolving his personal liabilities to Ulster Bank. In 2009 Ulster Bank was prepared to follow this strategy. In June, 2009 Mr. Doyle offered to purchase the Premises for €5.6 million. This was considerably in excess of all other expressions of interest. The offer was accepted by the Receiver. Between June and December, 2009 the Receiver’s solicitors sought the consent of Mr. Conlon to the assignment of the Sublease to Mr. Doyle. 7. Mr. Doyle and Ulster Bank reached an agreement in relation to the purchase of the Premises and a resolution of his liabilities to Ulster Bank. The Bank issued a facility letter dated 1st December, 2009, whereby it agreed to advance Mr. Doyle the sum of €5.240 million to finance the acquisition of the Premises and to provide for the settlement of his obligations under his personal guarantee. A further €1 million was to be made available to re-finance his existing personal liability. On 4th December, 2009, the first named defendant, acting by its receiver, the Receiver, agreed to sell the Premises to Mr. Doyle in trust for the first named plaintiff. Completion of the sale was conditional upon the Receiver obtaining the prior written consent of the landlord to the assignment of the Sublease. 8. Pending completion of the sale and while the Receiver was obtaining the landlord’s consent to the assignment of the Sublease, Mr. Doyle was very anxious to go into possession of the Premises. The Receiver and Mr. Doyle entered into an agency agreement whereby the Receiver employed Mr. Doyle’s company to run the business. The Receiver remained the licence holder of the Premises. 9. In the event there were significant difficulties in obtaining any consent from Mr. Conlon. Initially Mr. Conlon had sought to forfeit the Sublease, but this position was not pursued. He then served a schedule of dilapidations in relation to the property. The dilapidations had to be dealt with. Throughout 2010 and 2011 Mr. Conlon refused to grant his consent to the proposed assignment of the Sublease to Mr. Doyle or one of his companies. Ultimately the Receiver issued proceedings on behalf of the first named defendant in the High Court seeking a declaration that Mr. Conlon’s consent to the proposed assignment was being unreasonably held. 10. Mr. Doyle’s personal finances reached a crisis in May, 2010 when a number of his public houses were placed into receivership by Bank of Scotland (Ireland) Ltd. The practical effect of this development was that Mr. Doyle’s ability to raise funding and the Receiver’s ability to obtain the landlord’s consent became very difficult. It meant that there was no realistic prospect of completing the 2009 contract. Throughout 2012 Mr. Doyle sought to renegotiate the facilities he had agreed with Ulster Bank in 2009 as the facility letter of 1st December, 2009, had lapsed in January, 2010. By an email dated 10th August, 2012, Mr. Robert Foster of Ulster Bank informed Mr. Doyle, copying the email to Mr. John Dolan, Mr. Doyle’s accountant, that the Bank had declined the request for funding to purchase the Premises from the Receiver and informed him that the Bank wanted to realise value for its security now. He indicated that he would inform the Receiver. 11. The Receiver instructed CBRE to market the Premises again. Interested parties were contacted directly and the property was advertised for sale in the national press. Mr. John Hughes of CBRE wrote to Mr. Doyle on 1st October, 2012, informing him that he was selling the Premises on the instructions of the Receiver. Mr. Doyle was informed that CBRE were inviting all interested parties to submit their best unconditional final offer for the premises in writing by 12th October, 2012. It was stated that the formal offer should include the amount offered together with proof of funding:-
13. CBRE received over a hundred expressions of interest and approximately 20 viewings of the Premises took place during the course of September and October, 2012. Mr. Doyle was aware of these developments and made no objection to the efforts by the Receiver to sell the property in autumn 2012. 14. As a result of this exercise two interested parties emerged; Panther BIL Ltd. and Mr. Paul Keavney. An offer was accepted from Mr. Keavney purchasing through his company Bolway Investments Ltd. in the sum of €2.35 million and contracts were issued to his solicitors. There was a difficulty in obtaining Mr. Conlon’s consent to the assignment of the Sublease to Mr. Keavney or his company. In June, 2013 the Receiver’s solicitors received a letter from Mr. Conlon’s solicitors consenting to the assignment of the Sublease to Panther BIL Ltd. The principal of Panther BIL Ltd. is Mr. Greg Kavanagh. The Receiver had certain talks with Panther BIL Ltd. but ultimately the matter did not go any further with either Mr. Keavney or Panther BIL Ltd. The contracts issued to Mr. Keavney were not executed. 15. In early September, 2013 a new potential purchaser emerged, Mr. Thor O’Brien. He operated a bar in The Central Hotel which was immediately adjacent to the Premises. The owner of The Central Hotel was Mr. Conlon. Mr. Conlon told the Receiver that he would consent to an assignment of the Sublease to Mr. O’Brien. Mr. O’Brien made an offer to purchase the Premises towards the end of November, 2013 for €2.3 million. The contracts which had been sent out to Mr. Keavney were taken back and Mr. O’Brien’s offer was accepted and contracts were sent out to him towards the end of November, 2013. However, Mr. O’Brien did not sign the contract but sought to reduce his offer from €2.3 million to €1.8 million and then €1.9 million. 16. Throughout 2013 Mr. Doyle had been negotiating to resolve his liabilities with Bank of Scotland (Ireland) Ltd. Ultimately in early December, 2013 he refinanced his liabilities with Bank of Scotland (Ireland) Ltd. and an investment fund called Apollo who had purchased his loans. He refinanced his liabilities with facilities from Bank of Ireland and Allied Irish Bank. Mr. Doyle remained eager to purchase the Premises if at all possible. In August, 2013 Mr. Doyle approached Mr. Roche of Ulster Bank seeking to raise finance from Ulster Bank to allow him to purchase the Premises and to resolve his personal liabilities with that bank. Negotiations to purchase the Premises and resolve personal liabilities to Ulster Bank 18. Mr. Roche contacted the Receiver and suggested that a three way meeting be organised between Ulster Bank, the Receiver and Mr. Doyle in January, 2014. A meeting was arranged by the Receiver on the 5th February, 2014. 19. In the meantime Mr. Conlon’s solicitors wrote to the Receiver indicating that Mr. Doyle and Mr. Conlon had been in direct communication with each other and Mr. Conlon now agreed to the assignment of the Sublease to Mr. Doyle or his nominated company. Despite the fact that the Receiver had issued contracts to Mr. O’Brien he was prepared to explore a possible sale to Mr. Doyle as Mr. O’Brien had reduced his offer and there was no immediate sign of the executed contracts being returned. 20. The meeting of the 5th February, 2014, was on a without prejudice basis. It was chaired by the Receiver. Mr. Tom Kavanagh’s evidence was that Mr. Roche advised Mr. Doyle that the Receiver was selling the property and that the reason for Ulster Bank’s involvement was to agree the sale price and to deal with his personal liabilities. Mr. Kavanagh stated that if a sale was agreed it would be subject “to legals and proof of funding”. 21. Mr. Roche’s evidence was as follows:-
There was no reason for the Receiver to discuss the potential sale of the Property with Mr. Doyle, unless he was able to demonstrate that he was in a position to fund it. To fund it, he was going to have to be able to reach a settlement with the Bank in relation to the Recourse Element, as it was unlikely that a third party lender would get involved unless the legal and financial risks associated with the Recourse Element were closed out.”
23. The Receiver asked Mr. Doyle had he funding to do a deal and Mr. Doyle said that talks were under way but that he needed to know the figure for settling his personal exposure with the Bank. He said he could no longer offer €2.5 million and offered the sum of €2.125 million to purchase the Premises together with €100,000 to discharge his personal debts. The Receiver asked him how far away from concluding a deal would he be and Mr. Doyle said it would take a couple of weeks and perhaps longer “as the Banks may need longer to do due diligence”. Mr. Doyle was asked to leave the room and the Receiver and Mr. Roche discussed the situation. They agreed that a minimum total figure of €2.4 million would be acceptable, though they did not agree how this was to be split between the purchase price and the settlement of the personal liabilities due to Ulster Bank. When Mr. Doyle returned to the room he was informed that the Receiver and Ulster Bank required an all in sum of €2.4 million with the split to be agreed and Mr. Doyle was to underwrite any trading losses from the Premises until the date of closing. He was to provide a sworn statement of affairs to Ulster Bank and documentation confirming his settlement of his liabilities with Bank of Scotland (Ireland) Ltd. Mr. Doyle was to revert to Ulster Bank with a final offer within a week. 24. Mr. Doyle wrote to Mr. Roche on 12th February, 2014, and copied the Receiver and Mr. Micheál Leydon of Kavanagh Fennell with the letter. He headed it “without prejudice”. He reiterated his offer of €2.225 million to purchase the Premises and as a full and final settlement of his personal liabilities to Ulster Bank. He stated that he would require confirmation of same in order to finalise his funding arrangements. Mr. Doyle headed this offer “without prejudice”, in my opinion, because the meeting of the 5th February, 2014, had been on a “without prejudice” basis. I believe this despite his evidence that he could not remember this fact. Furthermore, he gave evidence that the use of this phrase meant that “it was subject to a deal”. On the balance of probabilities I find that the negotiations on all sides were on a “without prejudice” basis. 25. Mr. Roche and Mr. Doyle spoke on the phone on 14th February, 2014. Mr. Roche’s testimony was:-
26. There was a delay in Mr. Doyle furnishing the information necessary to deal with the settlement of his personal liabilities to Ulster Bank throughout February and March, 2014. The Receiver and Ulster Bank were concerned at the delay. They had doubts whether or not there was any reality to Mr. Doyle being in a position to obtain the necessary funding to both purchase the Premises and settle his personal liabilities with Ulster Bank, assuming an agreement could be reached in relation to the figures. The contract for the sale of the Premises which had been sent to Mr. Thor O’Brien in November, 2013 still had not yet been signed. Mr. O’Brien had reduced his offer from €2.3 million and was refusing to sign the contract unless the Receiver accepted a figure of €1.9 million. Both the Receiver and Mr. Roche of Ulster Bank were conscious of the fact that they would have to decide whether or not to proceed with the sale to Mr. O’Brien or try to negotiate an agreement with Mr. Doyle. At this point in time Mr. Conlon had indicated that he would consent to the assignment of the Sublease to both Mr. O’Brien and Mr. Doyle so that was no longer a stumbling block. Both the Receiver and Ulster Bank were anxious that Mr. Doyle might not be able to raise finance and wished to see proof of funds from Mr. Doyle before they would agree to the sale of the Premises and the compromise of his personal liabilities to Ulster Bank. 27. By the 24th March, 2014, Mr. Doyle had furnished sufficient information to Mr. Roche to enable him to prepare a settlement proposal paper for consideration by Ulster Bank’s debt settlement forum. The proposal was to sell the pub and to settle with Mr. Doyle for a combined value of €2.25 million. In evidence Mr. Roche stated that this was an error and that it should have read €2.225 million. The proposal referred to the fact that Ulster Bank had appointed a Receiver over the Premises and that the Receiver had put the property on the market in 2009. It also referred to the fact that the Receiver needed the landlord’s consent to facilitate the sale and it referred to the costs associated with the receivership sale in the context inter alia of the proposed settlement offered by Mr. Doyle in writing in his letter of 12th February, 2014. I emphasise these points as it was argued on behalf of the plaintiffs that the debt settlement proposal indicated that Ulster Bank intended to sell the Premises to Mr. Doyle. I reject this argument. Even though the proposal refers to a sale of the Premises it is clear that the Receiver is the party who will carry out the sale. The debt settlement forum approved the proposal on 27th March, 2014. The alleged agreement
As with previous discussions, it was acknowledged that both these telephone discussions were on a “without prejudice” basis. I advised him that the approval was on the basis that the deal close by 31 May 2014, and that the Bank required proof of funding. I wanted pretty tight timelines for the proposed deal, however Mr. Doyle advised that he would need 6 weeks to get funds approved by Bank of Ireland (13 May 2014) and sign contracts, and four weeks to close (10 June 2014).” 31. There was a second telephone conversation the following day, 1st April, 2014, between Mr. Roche and Mr. Doyle. Mr. Doyle’s testimony was as follows:-
Timelines → proof of funds and sign contracts 6 wks 13 May. Easter 4 wks 10 June.
€2.295K = NCO [new company] - Globe Ent’s. No discounts on mgt fee.” 34. Mr. Doyle then instructed his accountant, Mr. Dolan, to write to Mr. Roche. He sent an email to Mr. Roche and the subject was described as “Sean Doyle Revised Globe Offer”. The text of the email was headed “Without Prejudice” and provided as follows:-
Further to our discussions regarding the Globe Purchase we wish to confirm the following: We revise our offer of €2,300,000 for the purchase of The Globe and Rí-Rá and settlement of all personal liabilities to Ulster Bank split as €2,295,000 for the Globe Purchase and €5,000 in settlement of all personal liabilities of Sean Doyle to Ulster Bank. This is to include full and final settlement of Sean Doyle’s personal unsecured facility no.5000004828 and any other Personal Guarantee Liability due to Ulster Bank. The above offer is subject to the below. 1. All amounts owing to Sean Doyle Management Services Limited for the management of the Globe for Kavanagh Fennell are paid in full two weeks after closing and no discount to be requested by Kavanagh or Ulster Bank. 2. We require a letter from either Kavanagh Fennell or Ulster stating that the purchase price agreed for The Globe is €2,295,000 with no mention of the personal settlement. We require this immediately in order to progress with organising finance. 3. We require a letter stating that all the personal liabilities of Sean Doyle are settled for €5,000. 4. We require 6 weeks to provide proof of funding and signing of contract from date of receipt of the letter outlined in No. 2 above. The reason we are requesting 6 weeks is that the Easter Break will undoubtedly cause delays. 5. We require 4 weeks to close after signing of contracts. 6. The purchasing entity will be Globe Entertainments Limited c/o Sean Ogs Hotel Kilmuckridge, Gorey, Co. Wexford. This is subject to change at the request of our funder. 7. The offer is made subject to us getting an assignment of the RiRa (sic) lease from Gerry Conlon. Once we get the letter as outlined in No.2 we will progress with getting the assignment. 8. Solicitor Rory Deane and Company, Solicitors, Temple House, 8 Templeshannon, Enniscorthy, Co. Wexford. Regards John Dolan”(emphasis added)
I note you will send a formal request to the bank this afternoon recommending consent to the sale at €2,295k.”
- the fact that Sean is responsible for all losses since our negotiations commenced - closing date is 31.5.14 - we need to bottom out what Sean owes us for profit share and what we owe him for other matters and get some wording around that”.
In the interim, do you want to send in a note recommending the sale at €2,295k, subject to clarity on a number of points? That way we can get the ball rolling with the BOI funding request. I can then confirm to SD that the bank has consented to the sale with the contract terms to be agreed between Receiver and SD.”
Please revert with approval for same. Regards, Tom.”
I refer to your email below and recent discussion and formally confirm that the bank has consented to the sale at €2.295m subject to a close by 31.05.14. Regards Graham.”
40. Mr. Roche replied to Mr.Leydon on 3rd April, 2014, thanking him for the letter and noting the contents of same:-
Can you liaise with Sean then to take the deal forward?”
Can I break news to Thor? [The Receiver’s solicitor] is going to have to retrieve the contract already issued to Thor’s solicitor before engaging with Rory Deane for Sean.”
That way we have a Plan B if he cant (sic) get the funding. Realistically thats (sic) going to take up to 4 weeks, so I’m not sure how that will pan out. What do you think?”
Dear Sean, Following receipt of a recommendation from the Receiver, I confirm that Ulster Bank Ireland Limited has consented to the proposed sale of the Globe/ RíRá to Globe Entertainments Limited for €2,295,000 subject to the sale closing by 31st May 2014. I trust you find the above in order and should you have any further queries please contact jenny.byrne@ulsterbankcm.com. Yours sincerely Graham Roche Director RCRI cc Tom Kavanagh, Receiver and Manager, The Pub Pool Ltd”.
Thanks for that, can you also fwd other letter confirming the €5k. Regards Sean Doyle”. Subsequent Development
He is to pay a €400,000 non refundable deposit on the signing of the contract. You might confirm that you are agreeable to the above.” 45. Before the Receiver signed the contract on 17th April, 2014, he emailed his solicitor as follows:-
I’m concerned that if I sign the contract today with Greg kavanagh without giving sean doyle one last bid that this may jeopardise the banks ability to chase sean on the PG I have a feeling the bank may prefer to close the deal with Greg regardless of this but I would like the bank to be aware of any consequences Pl[ease] advise and note Graham is away but Jenny is cc’d above Jenny- once [the Receiver’s solicitor] advises I would be obliged to receive instructions before I sign up Tom”. 46. On 23rd April, 2014, the Receiver made contact with Mr. Doyle and informed Mr. Doyle of the sale of the Premises to a third party. Mr. Doyle’s evidence was:-
48. Mr. Doyle went on holidays and subsequently on 13th May, 2014, there was a meeting between Mr. Doyle, Mr. Leydon and the Receiver. The Receiver confirmed that he was proceeding with a sale to a third party and terminated the agency agreement with the first named plaintiff. Mr. Doyle indicated that he was going to institute these proceedings and register a lis pendens. Ultimately Mr. Doyle instituted the proceedings and sought an injunction to restrain the defendants from selling the Premises to a third party. The issues The Vendor 51. The uncontraverted evidence was that the Receiver had been trying to sell the Premises since 2009. He had signed a contract for the sale of the Premises with Mr. Doyle in December, 2009. He had entered into an agency agreement with Mr. Doyle at the same time. He was the holder of the licence to the Premises. He instituted proceedings against Mr. Conlon seeking a declaration that Mr. Conlon had unreasonably withheld his consent to the assignment of the Sublease to Mr. Doyle or one of his nominated companies. In autumn 2012 he remarketed the Premises in the national press. His selling agent, CBRE wrote to Mr. Doyle on 1st October, 2012, informing him that the Receiver was seeking to sell the Premises. He issued contracts to Mr. Keavney and Mr. O’Brien in 2012 and 2013 and to Mr. Greg Kavanagh’s company, Panther BIL Ltd. in April, 2014. 52. The evidence establishes the fact that at no stage did Ulster Bank ever intend to sell the Premises and that it was always the intention of both Ulster Bank and the Receiver that the Receiver would be the vendor of the Premises. The involvement of Ulster Bank in the negotiations with Mr. Doyle was solely for the purpose of resolving his personal liabilities to Ulster Bank and ensuring that Ulster Bank was satisfied at the proposed purchase price for the Premises so that it would consent to the release of its charge. 53. A fundamental difficulty in this case was the failure of Mr. Doyle to appreciate or accept the distinct roles of the Receiver and Ulster Bank in the ensuing transaction. This was not a simple sale by the Receiver of a charged asset to a purchaser. The proposed purchaser was personally indebted to the mortgagee Bank. In order that the transaction could proceed, Ulster Bank had to agree a settlement in relation to the personal liabilities of Mr. Doyle to the Bank and it had to be satisfied at the price at which the Receiver was proposing to sell the charged asset if it were to consent to the release of the charge. The sale could not proceed if the charge was not released at the closing of the sale. The purchase price was insufficient to discharge the sums due to Ulster Bank by the first named defendant so the consent of Ulster Bank to release its charge was necessary. 54. I am completely unable to accept any suggestion that Mr. Doyle was not fully aware of the distinction between Ulster Bank and the Receiver in this case. I do not accept that he can have believed that Ulster Bank was selling the Premises. I find his testimony to the effect that either Mr. Roche was acting for the Receiver or the Receiver was acting for Ulster Bank to be completely incredible. Mr. Doyle undoubtedly was aware of the significance of the person who holds the licence to a licenced premise. He also had considerable personal experience of receivers as in 2010 Bank of Scotland (Ireland) Ltd. appointed receivers to a number of his properties. I do not accept that a person of Mr. Doyle’s experience would not be aware of the fundamental importance of the identity of the Vendor of property. I am forced to conclude that Mr. Doyle in fact must have known that it was always the intention of both Ulster Bank and the Receiver that the Receiver and the Receiver alone was to sell the Premises. Further, there was no credible evidence adduced to suggest why Ulster Bank should sell the Premises to Mr. Doyle but that all other possible contracts for the sale of the Premises to any other parties were to be with the Receiver. I hold as a fact that, at all material times, the Vendor of the Premises was the Receiver. Was there a calculated agreement 56. If I accept that the plaintiffs’ case is that the Vendor was Ulster Bank, in my judgment, there is no evidence to establish that Ulster Bank ever intended to act as Vendor of the Premises. Ulster Bank had appointed a Receiver in 2009 and had always acted on the basis that the Receiver was to be the Vendor of the Premises. The Receiver entered into the contract for sale of the Premises with Mr. Doyle in 2009. The Receiver marketed the Premises for sale in 2009 and in 2012. The Receiver issued contracts to Mr. Keavney, Mr. Thor O’Brien and ultimately to Mr. Greg Kavanagh’s company, Panther BIL Ltd. The emails between Mr. Roche and the Receiver and Mr. Leydon between the 1st and 3rd April, 2014, are certainly consistent with the position that the Vendor was to be the Receiver and that Ulster Bank was consenting to the proposed sale. It follows therefore that there cannot have been any concluded agreement between the first named plaintiff and Ulster Bank for the sale of the Premises. Therefore any enforceable agreement must be between the first named plaintiff and the Receiver. On the plaintiffs’ evidence no such agreement with the Receiver has been established. Section 51 of the Land and Conveyancing Law Reform Act 2009
58. The Receiver’s last document is his email of 2nd April, 2014, and it is addressed to Ulster Bank, not Mr. Doyle or Mr. Dolan. It recommends acceptance of an offer subject to certain conditions which have yet to be agreed between the parties. The letter of 2nd April, 2014, in the name of the Receiver emailed by Mr. Leydon to Mr. Roche refers to the Receiver recommending the sale of the Premises on foot of the offer received from Mr. Doyle. It expressly states that there are a number of areas to be finalised. It is clear from the terms of the letter that the closing date has not yet been agreed with Mr. Doyle. There is no subsequent document from the Receiver in the chain relied upon by the first named plaintiff. 59. Buckley, Conroy and O’Neill in Specific Performance in Ireland (First Edition, 2012) state at para. 3.13:-
60. An essential condition in a binding contract for the sale of land is the closing date. The Receiver suggested 31st May, 2014, as the closing date. The plaintiffs argue that the closing date of 31st May, 2014, was accepted by Mr. Doyle in the email of 3rd April, 2014, to Ms. Byrne and Mr. Roche. Of course this email is not addressed to the Receiver and it is not signed by him. Furthermore, there was no evidence that Mr. Doyle accepted this closing date. In argument, counsel for the plaintiffs said that the email in reply of 3rd April, 2014, “[t]hanks for that, can you also fwd (sic) other letter confirming the €5k” amounted to an acceptance of this closing date. On the face of it, I could not construe this email as accepting this closing date. There was no evidence from Mr. Doyle or Mr. Dolan on his behalf ever confirming the acceptance of the closing date of 31st May, 2014. It follows therefore that there was no agreement on one of the essential conditions for a contract for the sale of land to come into being. That being so, there is no evidence of a note or memorandum, whether a chain of emails or otherwise, the last of which was signed by the person charges or his authorised agent, evidencing a concluded agreement to satisfy the statute. On that basis this action must fail. Agency
62. Any agreement reached between Mr. Doyle and Mr. Roche could not bind the Receiver unless Mr. Roche was the agent of the Receiver. There is no evidence whatsoever to establish the fact that Mr. Roche was the agent of the Receiver. This was never put to either Mr. Roche or the Receiver. He was certainly not his authorised agent as required by s.51 of the Act of 2009. I find as a fact that Mr. Roche was not the agent of the Receiver. Therefore he did not conclude an agreement on behalf of the Receiver. On that basis, there was clearly no agreement reached between Mr. Doyle and the Receiver based upon the discussions and emails with Mr. Roche. Mr. Doyle’s offer of 1st April, 2014, as expressed in Mr. Dolan’s email was forwarded to the Receiver. He recommended acceptance of that offer and the Bank confirmed that it had consented to the sale at €2.295 million subject to a close by 31st May, 2014. This is the height of the plaintiffs’ case that there was a concluded agreement with the Receiver. It does not amount to a concluded agreement with the Receiver. 63. The plaintiffs argued that the letter from Ulster Bank signed by Mr. Roche of 3rd April, 2014, was copied to the Receiver and that therefore he was bound by this letter. It was argued that this constituted acceptance of the offer and written proof of the terms of the contract. I cannot accept this. As a matter of logic and fundamental principle the fact that a person is carbon copied with a letter can in no way bind them to the contents of the letter. There is no suggestion that the letter was written for or on behalf of the Receiver. Furthermore, the text of the letter itself indicates that it was an agreement by Ulster Bank to a proposed sale by the Receiver. I hold that there was no concluded agreement for the sale of the Premises by the Receiver to the first named plaintiff. “Without Prejudice” 65. The offers of Mr. Doyle and of Mr. Dolan on his behalf each envisaged that contracts would be exchanged in the normal way. I therefore conclude that the offer of 1st April, 2014, was in substance subject to the exchange of a formal written contract. There is no requirement in law that the phrase “subject to contract” be employed in order to prevent an enforceable contract coming into effect before formal contracts are executed. I am of the opinion that the use by Mr. Doyle and Mr. Dolan of the phrase “without prejudice” had the effect of preventing an enforceable agreement coming into effect as was their intention, until all matters had been agreed with both Ulster Bank and the Receiver. Both the Receiver and Mr. Roche stated that they did not believe that they could have forced Mr. Doyle or his company to complete the alleged agreement as it then stood. As no formal contracts were executed between the first named plaintiff and any of the defendants for the sale of the Premises, the claim for specific performance must fail on this ground also. Closing Date Proof of funding 68. Mr. Doyle’s negotiations with Bybrook Capital LLP never progressed beyond a heads of agreement. Even the heads of agreement were not completed and were not executed by the parties. On the 7th May, 2014, Mr. Doyle produced a letter dated 1st May, 2014, from Bybrook Capital LLP which stated as follows:-
This letter is to inform you that partners of Bybrook Capital LLP have had extensive meetings with Sean Doyle of the Sean Doyle Group in London and Dublin in relation to the financing of the proposed offer for The Globe. As a result we have agreed to make finance available to cover the purchase price of €2,300,000, subject to due diligence. Bybrook Capital LLP manages the Bybrook Capital Master Fund LP (‘the Fund’). We confirm that The Fund has sufficient funds ro make this finance available. Please contact us if you have any queries.” 70. I do not accept this argument. In evidence the Receiver stated that he did not accept that this letter (or indeed any of the other documents furnished on discovery) constituted a proof of funding. The proof of funding which the Receiver required was set out in the letter from CBRE to all interested parties in October, 2012 and it clearly required that there be an unconditional signed facility letter or its equivalent. This letter does not amount to such a document. Furthermore, the defendants argued that it was clear that all along no agreement would come into effect until after Mr. Doyle had provided proof of funding. Mr. Doyle’s case was that this was a contract subject to the condition that he provide proof of funding. I reject this argument. It is absolutely clear that a receiver and in particular the Receiver in this case would not enter into a binding contract for the sale of the Premises to Mr. Doyle without proof of funds. This had been made clear to Mr. Doyle at the meeting of 5th February, 2014, and there was no credible evidence advanced to establish that this pre condition to the entering into a binding contract had been altered. This was a condition precedent to the formation of a contract, not a condition precedent to performance of the alleged contact. That being so, no proof of funding was ever provided by the plaintiffs. Therefore this is a further ground for holding that the Receiver never entered into a contract with the first named plaintiff. 71. If I am incorrect in this last point, it is still clear that the proof of funds letter of 1st May, 2014, (if it is accepted that this constitutes proof of funds) was not furnished to the Receiver until 7th May, 2014. In the intervening period he had concluded an agreement with Panther BIL Ltd. for the sale of the Premises, as he was free to do, and therefore by the time he was provided with the alleged proof of funds he was neither free nor obliged to enter into a contract with Mr. Doyle or the first named plaintiff. 72. For the reasons outlined above, I dismiss the plaintiffs’ claims for specific performance of the sale of the Premises and compromise of the personal debts of Mr. Doyle. |