Barnaton Investments Ltd v O'Leary and Radius Pie Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 30 July 2004
• Neutral Citation: [2004] IEHC 155
• Docket Number: No.10396P/2004
• Court: High Court
• Date: 30 July 2004

[2004] IEHC 155

THE HIGH COURT

No.10396P/2004

Barnaton Investments Ltd. v. O'Leary and Radius Pie Ltd.

Between

Barnaton Investments Limited

Plaintiff

And

Robert O'Leary and Radius Pie Limited

Defendants

Abstract:

Injunction - Assignment - Whether the plaintiff was entitled to an interlocutory injunction in circumstances where an assignment of the plaintiff’s property was allegedly executed without the plaintiff’s consent.

Facts: The plaintiff was the owner of an investment property in Cork, having acquired it from an associated company, which had leased portion thereof to two persons, who in turn had executed a Deed of Assignment in respect of their interest to the second named defendant company which was in occupation at the time of the proceedings. The landlord’s consent to that assignment of the lease to the company was for some reason never obtained. The defendant company, without approval from the plaintiff carried out extensive internal and some external work to the property. Consequently, the plaintiff sought an order directing the defendants to vacate the premises and an order directing the defendants to cease the works being carried out pending the determination of the proceedings. The matter was before the court by way of motion seeking interlocutory relief.

Held by Peart J in refusing the relief sought: That a number of issues arose for determination and accordingly there was a fair issue to be tried. Damages were an adequate remedy in respect of both parties, although it was difficult to ascertain what loss the plaintiff could/would suffer. The balance of convenience clearly favoured the refusal of the relief sought so that the restaurant (defendant company) could continue to trade while the proceedings were brought to trial and determined. The worst that could happen as far as the plaintiff was concerned was that they would get vacant possession of the premises and revert to the earlier situation in which case they would still be receiving rent.

Reporter: L.O’S.

Judgment of

Mr Justice Michael Peart

1 The plaintiff is currently the owner of an investment property in Cork, having by Deed of Assignment dated 31^st May 2002 acquired same from an associated company, Blasco Properties Limited which by Indenture of Lease dated 4^th August 1999 had leased portion thereof on the Ground Floor to two persons, namely Seamus O'Connell and John Magee, who in turn executed a Deed of Assignment in respect of their interest to the second named defendant company which is presently in occupation. It appears that Messrs. O'Connell and Magee, with others, were co-sponsors with the first named defendant of the second named defendant company at the time the lease was entered into in August 1999, and the reason why the assignment to the company took place was that Messrs O'Connell and Magee had ceased to be involved in the company, and it was thought best to have the leasehold interest transferred to the company. The company operated a restaurant business in the premises. There are other tenants of the plaintiff in other areas of the building.

2 Central to the facts of this application is the fact that for some reason not conclusively ascertained, but presumably through some oversight, it appears that the landlord's consent to the assignment by Messrs O'Connell and Magee of the lease to the company was never obtained, and of course there is the usual covenant in that regard contained in the lease at clause 39 thereof. That clause reads:

"Not to assign, sublet or part with or share possession or permit the occupation by a licensee of the demised premises (or suffer any person to occupy the demised premises as licensee or concessionaire) without the prior consent in writing of the lessor, such consent not to be unreasonably withheld and not to assign, underlet or part with or share possession or permit the occupation by a licensee of part of the demised premises under any circumstances whatsoever."

3 Clause 32 is also of relevance to this application, and it reads as follows:

"Not without the consent in writing of the Lessor first obtained, nor except in accordance with plans and specifications previously submitted to the satisfaction of the Lessor to erect or suffer to be erected any new building or erection on the demised premises, or make any alterations or additions whatsoever either externally or internally in or to the demised premises or any building or erection which may be erected thereon."

4 The restaurant traded over the past couple of years since the lease was granted. But it closed down recently and considerable works have been carried out to the interior of these restaurant premises in recent times by the company, and a full Restaurant Certificate has now been obtained with a full Publican's licence attached. Therefore the plaintiff has now in occupation without his consent a limited liability company which has carried out extensive internal work, and some exterior, in respect of which no plans and specifications were submitted for approval. The plaintiff in these circumstances seeks the reliefs set forth in the Notice of Motion herein dated 2^nd July 2004 as follows:

5 1. An order directing the defendants to vacate forthwith the premises known as Unit 3, 27–29 Courthouse Chambers, Washington Street, Cork pending the determination of these proceedings.

6 2. An order directing the defendants or either of them to cease the works being carried on by them or either of them within and on the said premises Unit 3 aforesaid and Unit 9, Courthouse Chambers aforesaid, affecting the structures of the premises Courthouse Chambers as a whole and the said units 3 and 9 aforesaid, pending the determination of these proceedings.

7 On the 2^nd July 2004, injunctive relief was granted to the plaintiffs on an interim basis in terms similar to number 2 above- in other words to cease work on the premises. The matter is now before this court by way of motion seeking interlocutory relief in respect of paragraphs 1 and 2 set forth above. Put briefly, the plaintiffs want the defendants to vacate the premises because they have no title to be there since there was no consent to the assignment of the lease to the company either before the assignment was made. Neither has it been either granted or sought subsequently.

8 Before this Court also is an application on behalf of the plaintiff to be permitted to amend the claim by the addition of two reliefs, the first being for an order that the defendants cease trading in the premises pending the determination of these proceedings and until such time as a Fire Safety Certificate has issued in respect of the altered premises, and the second being for an order that the defendants remove all items affixed by them to the exterior of the premises, to include four chiller units and a satellite television dish. These latter items have been attached to one of the outside walls of the premises, again without any consent and contrary to clause 32 of the lease.

9 It is important to point out again, as I stated at the commencement, that the present landlord of the premises, the plaintiff, acquired its interest from an associated company, and the current property manager, William O'Mahoney had previously fulfilled that role for Blasco. The present occupier of the premises, Radius Pie Limited took an assignment from two of its own original promoters. For all practical purposes there has been no change of personnel, other than in name, on both sides of this matter. The same people have been dealing with each other on the ground so to speak. I will return to that aspect later.

10 I should also point to another relevant background matter—that is that there is rent claimed to be owing by the tenants in the sum of €43,308.03. In fact this appears to be owing not to the plaintiff in these proceedings but to the plaintiff's predecessor in title, Blasco Properties Limited, since the dates in respect of which the rent is due predates the assignment of the landlord's interest to the plaintiff company. However, the defendants say that it is not owing in fact, and that it is a sum which is disputed since there was some arrangement that a reduced rent would be payable at the...