Aim Cash & Carry Ltd v Allpoints Building & Maintenance Ltd & Only Three Euro Ltd v Tamco Management Ltd
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 25 November 2014 |
| Neutral Citation | [2014] IEHC 555 |
| Court | High Court |
| Date | 25 November 2014 |
[2014] IEHC 555
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
OKUNADE v MIN FOR JUSTICE & ORS 2012 3 IR 152
CAMPUS OIL v MIN FOR INDUSTRY (NO 2) 1983 IR 88
B & S LTD v IRISH AUTO TRADER LTD 1995 2 IR 142
LINGAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89
ALLIED IRISH BANKS PLC & ORS v DIAMOND & ORS 2012 3 IR 549
TRIATIC LTD v CORK CO COUNCIL 2007 3 IR 57
BULA LTD v TARA MINES LTD (NO 2) 1987 IR 95
FISHENDEN v HIGGS & HILL LTD 153 LT 128
POWER SUPERMARKETS LTD v CRUMLIN INVESTMENTS LTD UNREP COSTELLO 22.6.1981 1981/11/2038
ALLIED IRISH COAL SUPPLIES LTD v POWELL DUFFRYN INTERNATIONAL FUELS LTD 1998 2 IR 519
DUNNE v DUN LAOGHAIRE RATHDOWN CO COUNCIL 2003 1 IR 567
Interlocutory relief – Leases – Sub-letting of premises – Renewal – Reliance on representations made – Order sought prohibiting landlord from ejecting tenant from premises – Order of specific performance sought granting applicant further short-term lease of the premises – Order sought granting declaratory relief –"Strong arguable case"– Adequacy of damages – Balance of convenience
Facts The parties executed a lease. The lease contained provisions for early termination and a covenant on behalf of the tenant not to assign, sublet or part with possession of the premises... nor permit any other person or company to occupy same. The head landlord, Mr O"Reilly, was associated with the respondent company. Chartered Land Limited subsequently wrote to the applicant to confirm that it had agreed to the change of name of the applicant's lessor from Peter McNally to the respondent. The applicant had sub-let the premises to a company named Malik & Sons Food Limited. It was alleged in affidavit evidence provided by the director and executive chairman of AIM Cash & Carry LTD, Mr Maniar that several representations were made regarding the renewal of the applicant"s lease. The applicant"s sub-tenant, Mr Malik, confirmed that he held a sub-lease of the premises on a monthly basis. Mr Malik averred that in the week prior to the 18th June 2014, Mr Good and Mr McNally of the respondent visited him at the premises stating they wanted vacant possession of the property for the month of July. Mr Maniar averred that Mr Malik was told that, if he did not co-operate, his company would be locked out of the premises and he would not get a new lease. Mr Maniar said that Mr Diggins of Chartered Land also visited Mr Malik at the premises to inform him that he should vacate the property by the end of June 2014; that he advised him not to pay rent to the applicant and was told that the applicant would not be getting any further lease in respect of the premises.
Mr Good emphasised that the applicant"s short-term letting of the premises terminated on the 30th June 2014 when the head lease agreement entered into between Mr O'Reilly and the respondent terminated, in accordance with its terms; and had not been renewed. In the circumstances, he said on behalf of the respondent, that it could not be required to perform an agreement with the applicant to grant it a further short-term letting of the premises and that an order restraining it from ejecting the applicant from the premises would be futile in that it no longer had any interest in the premises to enforce.
Held The court considered the established principles governing interlocutory injunction applications. The judge said the test by reference to which such an application must be considered is whether the applicant has made out a "strong arguable case" for the relief it seeks. The judge was neither satisfied that the applicant had made out a strong arguable case for the agreement it sought to rely upon nor a strong arguable case that it was appropriate to make any order against the respondent in respect of a premises in which it held no interest.
- Relief sought refused
This is an application for interlocutory relief in two related sets of proceedings. The hearing of the application proceeded solely by reference to the motion papers in the application brought in the first set of proceedings, since the parties accept that the material facts and the relevant issues are essentially the same in each application and that, accordingly, they must stand or fall together.
The applicant seeks three different kinds of interlocutory relief. The first is an order prohibiting the respondent, as its landlord, from ejecting it, as tenant, from certain premises it occupies in Moore Street and Moore Lane in Dublin city centre ("thepremises"). The second is an order requiring the specific performance by the respondent of an alleged agreement to grant the applicant a further short-term lease of those premises. The third is an order granting three separate declarations: first, that the applicant is entitled to a further short-term lease; second, that the applicant is entitled to rely on certain alleged representations made by the respondent to that effect; and third, that the respondent is estopped from ejecting the applicant from the premises.
The plenary summons in this case issued on the 30 th June 2014. The first five reliefs identified in the general indorsement of claim contained in it are precisely those that I have just described as the reliefs sought in the present interlocutory application. The only other reliefs claimed in the proceedings are damages and costs. On the same date, the applicant was granted leave to issue and effect short service of the motion papers in the present application, returnable for the 3 rd July 2014. A memorandum of appearance was entered on behalf of the respondent on the 14 th July 2014. The application came before me and was heard on the 17 th July 2014.
The following matters are not in dispute. On the 1 st July 2013, the parties executed a lease in respect of the premises, the term of which was expressed to be "from the 23 rdNovember 2011 to the 29 th June 2014 (both days inclusive), subject to the provisions for early termination." The clause in the lease dealing with early termination provides that the lease was to "automatically terminate upon the termination by the HeadLandlord of the Head Lease." The lease defines the "Head Landlord" as one Joseph O'Reilly and the "Head Lease" as one between Mr O'Reilly and the respondent.
The said lease also contains a covenant on behalf of the applicant, as tenant, "[n]ot to assign, sublet or part with, or share in, the possession of the [p]remises or any part thereof nor permit any other person or company to occupy the same as a licensee or otherwise...."
On the 1 st July 2013, the applicant executed a deed of renunciation of any right that it might otherwise have had to a new tenancy in the premises.
The parties also agree in respect of a number of other matters. The applicant's original short-term letting of the premises commenced on or about the 16 th November 2009 when one Peter McNally granted it a lease. Mr McNally is associated with the respondent. On the 16 th November 2009, Mr McNally executed a side-agreement with the applicant whereby he agreed that the applicant would be allowed to remain in the premises as long as Mr McNally held a leasehold interest or equivalent from the superior landlord.
The superior (or head) landlord Mr O'Reilly is associated with a company named Chartered Land Limited. By letter dated the 29 th May 2012, Chartered Land Limited wrote to the applicant to confirm that it had agreed to the change of name of the applicant's lessor from Peter McNally to the respondent. The respondent was incorporated on the 14 th March 2012. Although, the respondent did not formally enter into its own short term lease agreement with Mr O'Reilly in respect of the premisesuntil the 14 th May 2013, it forwarded a draft of the onward lease of the premises that it proposed to enter into with the applicant to the latter on or about the 14 th February 2013. The head lease agreement later entered into between Mr O'Reilly and the respondent terminated, in accordance with its terms, on the 30 th June 2014.
The applicant has sub-let the premises at issue to a company named Malik & Sons Food Limited.
In the affidavit that he swore on the 30 th June 2014 to ground the present application, Mr Naeem Maniar avers that he is the director and executive chairman of the applicant.
In the said affidavit, Mr Maniar deposes to his understanding that the applicant "would be granted one or perhaps two further short-term letting agreements in respect of the premises." Mr Maniar avers that this understanding was based on oral and written representations that he alleges were made to him by Mr Basil Good, a director of the respondent.
Mr Maniar identifies the relevant alleged oral representation as follows. In or about November 2013, Mr Good indicated to Mr Maniar that, once the applicant company in each set of proceedings executed a deed of renunciation concerning any right to a new tenancy it might have, "new short term leases running for a further two or three years would be issued by the [r]espondent to both companies."
In respect of the written representations upon which the applicant seeks to rely, Mr Maniar exhibits two documents. The first is a letter dated the 29 th May 2012 from one Andrew Diggins, on behalf of Chartered Land Limited, to Mr Maniar as executive chairman of the AIM group. It is the letter that confirms the agreement of Chartered...
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