Basinview Management Ltd and Others v Borg Developments and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 12 June 2012 |
| Neutral Citation | [2012] IEHC 380 |
| Court | High Court |
| Date | 12 June 2012 |
[2012] IEHC 380
THE HIGH COURT
BETWEEN
AND
AND
COMPANIES ACT 1963 S222
CIVIL LIABILITY ACT 1961 S27(1)
RSC O.16 r1(3)
RSC O.16 r3
CIVIL LIABILITY ACT 1961 S27(1)(B)
RSC O.21 r1(B)
RSC O.122 r10
RSC O.16 r2
KSK ENTERPRISES LTD v BORD PLEANALA & ORS 1994 2 IR 128 1994 2 ILRM 1 1994/4/1176
RSC O.16 r2(2)
RSC O.16 r4
GILMORE v WINDLE 1967 IR 323
BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL v STAUNTON 1990 2 IR 31 1989 ILRM 877 1989/6/1838
MOLLOY v DUBLIN CORP & ORS 2001 4 IR 52 2002 2 ILRM 22 2003/38/9025
GREER v JOHN SISK & SONS LTD UNREP SUPREME 20.3.2002 2002/12/2933
MURNAGHAN v MARKLAND HOLDINGS LTD UNREP LAFFOY 10.8.2007 2007/43/8921 2007 IEHC 255
COOKE v CRONIN & NEARY UNREP SUPREME 14.7.1999 1999/5/1117
A & P (IRL) LTD v GOLDEN VALE PRODUCTS LTD T/A GOLDEN VALE ENGINEERING UNREP MCMAHON 7.12.1978 1983/5/1165
NEVILLE v MARGAN LTD 1988 IR 734 1989/3/629
SFL ENGINEERING LTD v SMYTH CLADDING SYSTEMS LTD UNREP KELLY 9.5.1997 1998/10/2952
ROBINS v COLEMAN & ORS 2010 2 IR 180 2009/49/12307 2009 IEHC 486
RSC O.115 r1
GREENE v TRIANGLE DEVELOPMENTS LTD & WADDING UNREP CLARKE 4.3.2008 2008/27/5935 2008 IEHC 52
RSC O.21 r1
RSC O.122 r8
RYLANDS & HORROCKS v FLETCHER 1868 3 LR HL 330 1861-73 AER REP 1
RSC O.125 r2
RSC O.125 r3
RSC O.124 r1
Property – Damage to property – Ingress of foul water – Plaintiff apartment holders claiming lessors and development company responsible for ingress – Lessor claiming third party contributory to damage
Facts: The first plaintiff and remaining plaintiffs were the management company and apartment holders respectively in a complex in Dublin. During 2006 the apartments suffered from dampness and the ingress of foul water. Circuit Court proceedings were issued in 2007. The plaintiffs later launched the current proceedings against the defendants, who were the lessor and development company in respect of the complex, claiming damages on a number of grounds.
The defendants denied any responsibility for the damage, but also contended that any damage had been caused by a resident of the complex and sought to join him as a third party to the claim. The third party now sought to set aside the order giving leave to join him as a third party.
Held by Herbert J, that the defendants were clearly tardy in the service of their application to joining the third party to the claim. The total delay exceeded eleven months, and no explanation or excuse had been offered for the first part of that period. The defendants therefore had the onus of proving the delay was not unreasonable.
The Court was satisfied having regard to the evidence that the defendants were not directly responsible for the delay, as their legal representatives were mainly culpable. Whilst defendants could not escape any blame for the conduct of their advisors, the Court would consider the circumstances of each case before deciding whether the defendants” own conduct was reasonable. Thomas Greene and Katherine Greene v Triangle Developments Limited and George Wadding [2008] IEHC 52 applied.
As large numbers of third party applications were made outside the time limit for doing so, to penalise the defendants in the instant case would not be reasonable given the lack of any apparent prejudice to the third party. The Court further did not accept that the defendant was under a duty to assume at all times the possibility of joining a third party and progress the conduct of the proceedings accordingly. Mediation between the parties, which had failed, was lengthy but not unreasonably so. The Court was satisfied therefore that both the plaintiffs and defendants had not been unreasonably slow in their conduct of the proceedings.
The third party”s application was therefore dismissed.
JUDGMENT of Mr. Justice Herbert delivered the 12th day of June 2012
The basis alleged for the litigation in this case appears to be, - from the pleadings and affidavits, - that in July or August 2006, various apartment holders in the "Berkeley Block" and, in the "Landsdowne Block" of the apartment complex known as "Pembroke Square", Barrow Street, Dublin, became aware of spreading dampness and of the ingress of foul water in various parts of their apartments. By an Equity Civil Bill issued on the 21 st February, 2007, the owners of Apartment No. 9, Landsdowne Block, sued Basinview Management Limited and Borg Developments for damages for breach of covenant, negligence, misrepresentations and other reliefs. In its defence delivered on the 12 th June, 2007, Borg Developments Limited (the Lessor), pleaded inter alia, that any such ingress of water was caused or contributed to by negligence and/or breach of duty and/or breach of contract and/or nuisance on the part of Bernard Murphy, the owner of Apartment No. 34 in the same Block. By Order of the County Registrar made on the 4 th October, 2007, Bernard Murphy was joined as a third-party in those proceedings. In a third-party defence delivered on the 29 th April, 2009, Bernard Murphy denied that in or about July 2006, dishwater or similar effluent leaked from his apartment into that of the plaintiffs in those proceedings. He asserted that if the plaintiffs had suffered loss, damage, expense or inconvenience, (which he denied), this was caused by negligence and/or breach of contract and/or nuisance on the part of Basinview Management Limited, (the Management Company) or in the alternative on the part of Cosgrave Property Developments Limited in the design, construction, and maintenance of the "Landsdowne Block".
In the present action a plenary summons was issued on the 24 th July, 2007, by Basinview Management Limited, (the Management Company of the entire apartment complex known as "Pembroke Square") and 25 other individual plaintiffs who are owners of individual apartments in the "Berkeley Block" and, the "Lansdowne Block" of that complex against Borg Developments and Cosgrave Homes. The plaintiffs claim:-
"Damages for negligence in and about the construction and maintenance of those blocks and, in particular the common areas of those blocks and additionally or alternatively the utilities passing in, under or over those common areas.
Damages for nuisance and under the doctrine of Rylands and Fletcher. An injunction directing the defendants to put their apartments, the common areas and/or utilities into a satisfactory state of repair and, to maintain them in that condition pending the transfer of the common areas to the plaintiffs."
After the service of this plenary summons a process of mediation and conciliation was entered into between the parties. This unfortunately concluded on the 2 nd June, 2009, without any agreement being concluded between them.
By a letter dated the 5 th June, 2009, the solicitors for the named defendants notified the solicitors for the plaintiffs that unless a statement of claim was delivered within the following 21 days an application would be made to this Court to dismiss the plaintiffs' claim for want of prosecution.
By a letter dated the 12 th June, 2009, in reply, the solicitors for the plaintiffs advised the solicitors for the named defendants that following a joint inspection by the civil engineers for the plaintiffs and the defendants on the 29 th May, 2009, they were awaiting a report from the engineers for the plaintiffs to enable counsel to complete a statement of claim. They stated that this would require a further eight weeks at least. They also pointed out that it would be necessary for them to seek to amend the title of the action. This was necessary, they stated, because the several building agreements appeared to have been signed by Mr. Joseph Cosgrave and Mr. Michael Cosgrave, trading as Cosgrave Homes, which, in turn, appeared to be a trading name of Cosgrave Property Developments Company Limited. They asked the solicitors for the defendants to identify the correct title of the second defendant and to agree to the title of the action being amended without the need for a formal application to this Court.
In reply, by a letter dated the 23 rd June, 2009, the solicitors for the named defendants stated that it was a matter for the plaintiffs to correctly identify the defendants and, that they were surprised that this amendment was being sought nearly two years after the plenary summons had been issued. They went on to state that the site owner was Borg Developments and that it had engaged Cosgrave Homes to carry out the construction of the apartment complex. Both were unlimited companies and had their respective registered offices at 15 Hogan Place, Dublin 2.
On the 24 th July, 2009, the plaintiffs served a motion on notice, returnable for the 30 th July, 2009, on the solicitors for the named defendants seeking liberty to join Cosgrave Property Developments Limited as a co-defendant in the action. This motion was struck out by consent after a letter dated the 28 th July, 2009, had been received from the solicitors for the named defendants stating that Cosgrave Property Developments Limited had been incorporated on the 7 th October, 2003, after the apartment complex had been built. By a further letter dated the 14 t...
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McAuliffe v Greenstar Holdings Ltd ((in Receivership)) t/a Greenstar
...21.02.2018 to be the date when, to borrow from the judgment of Herbert J. in Basinview Management Ltd v. Borg Developments and ors [2012] IEHC 380, 22, ‘ the defendant, exercising reasonable care and prudence, [was] first in a position to know that it was possible to pursue a claim for cont......