Bennett v Earlsfort Centre (Developments) Unlimited Company
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian McGovern |
| Judgment Date | 13 February 2018 |
| Neutral Citation | [2018] IEHC 61 |
| Docket Number | [2017 No. 6658 P.] |
| Court | High Court |
| Date | 13 February 2018 |
[2018] IEHC 61
THE HIGH COURT
COMMERCIAL
McGovern J.
[2017 No. 6658 P.]
AND
Land and Conveyancing - S. 121 of the Land & Conveyancing Law Reform Act 2009 - Bona fide - O. 25 and/or o. 36 of the Rules of the Superior Courts - Vacation of lis pendens - Statement of claim - Specific performance - Breach of agreement
Facts: The defendant brought a motion to seek the following reliefs, namely an order pursuant to the inherent jurisdiction of the Court for vacating the lis pendens. The defendant also sought an order pursuant to o. 25 and/or o. 36 of the Rules of the Superior Courts for directing a trial of a preliminary issue and/or a modular trial on the construction of the agreement. The plaintiffs sought to amend their statement of claim. The defendant argued that the amendments sought were not necessary and those were filed for the purpose of enabling the plaintiffs to validly register a lis pendens.
Mr. Justice Brian McGovern made an order for vacating the lis pendens. The Court held that the issues raised by the parties did not involve a bona fide claim to an estate or interest in land. The Court further held that the amendments sought were for the purpose of trying to give legitimacy to the registration of the lis pendens. The Court refused the application for trial of a preliminary issue filed by the defendant. The Court relied on the judgment of L.M. v. Commissioner of An Garda Siochana [2015] 2 I.R. 45, where O'Donnell J. held that it would be inappropriate to try a preliminary issue that was heavily fact dependent. The Court refused the application to amend the statement of claim sought by the plaintiffs. The Court held that the claim was originally a claim for specific performance and/or damages which the plaintiffs claimed had arisen out of an alleged breach of agreement. The Court held that the plaintiffs were never the owner of the lands nor did they pay the purchase money for the same.
The defendant has brought a motion in these proceedings seeking the following reliefs:-
(i) an order pursuant to the inherent jurisdiction of the court vacating the lis pendens registered on Folio 135340F in the city of Dublin on 2nd August, 2017, arising out of the within proceedings on the grounds that it does not comply with s. 121 of the Land & Conveyancing Law Reform Act 2009 and/or an order pursuant to s. 123(b)(ii) that the action has not been prosecuted bona fide to the extent required to support a lis pendens; and
(ii) an order pursuant to O. 25 and/or O. 36 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court directing a trial of a preliminary issue and/or a modular trial on the construction of the agreement dated 13th April, 2007, made between the plaintiffs of the one part and the defendant of the other part.
Connected with the application to vacate the lis pendens is a motion brought by the plaintiffs seeking to amend their statement of claim. While the motion does not state the order upon which this is brought, it is clear from the arguments made that the application is brought pursuant to O. 28, r. 1 which provides:-
'The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.'
Since the defendant argues that the amendments sought are not necessary and are clearly for the purpose of enabling the plaintiffs to validly register a lis pendens, it is necessary to deal with this motion in conjunction with the defendant's application to vacate the lis pendens.
It seems to me that the most logical way to deal with the motions is to rule on the application to amend the statement of claim first and then to consider the defendant's application to vacate the lis pendens. Approaching the matter in this way will involve the court considering the pleadings to see what the real issues are between the parties. A decision on that issue will determine whether or not the amendments sought should be granted but may also have a bearing on whether or not the court should make an order vacating the lis pendens.
I have already referred to the text of O. 28, r. 1 above. In Citywide Leisure Limited v. IBRC [2012] IEHC 220, I summarised the factors to which the court should have regard when considering an application for leave to amend. At para. 16, I stated:-
'1. A party who applies for an order allowing it to amend its pleadings must furnish reasons as to why the court should exercise its discretion in its favour.
2. The court is entitled to look at those reasons and the evidence adduced therefrom to inform the exercise of its discretion.
3. Fundamentally, the exercise of that discretion involves an analysis as to whether the new claim involved the real issues in controversy between the parties.
4. The court is entitled to look at other factors.
5. The court can enquire if the new claim or new plea is bound to fail.
6. The inquiry by the court as to whether the new claim is or is not bound to fail can involve analysis by reference to either or both of the tests set out in Order 19, rule 28 or the court's inherent jurisdiction.
7. If the new claim fails to meet both these tests, then it is not one of the real issues in controversy between the parties.
8. If the new claim was bound the fail, the amendment will not be allowed.'
A reading of the general endorsement of claim on the plenary summons describes the claim as one in which the plaintiff seeks to enforce an agreement made on or about 13th April, 2017. The plaintiffs seek certain declarations and specific performance and damages. While the endorsement of claim at para. (d) claims an injunction restraining the defendant from assigning, disposing or otherwise dealing in ALL THAT AND THOSE the lands, hereditaments and premises comprised in Folio DN135340F' there is no claim made by the plaintiff for any interest in the land.
By an agreement in writing dated 8th February, 2007, the first, second and third named plaintiffs contracted to purchase the lands comprised in Folio DN135340F (' the land') from Eugene Murphy for the sum of €3,750,000. By an agreement in writing dated 13th April, 2007, the first, second and third named plaintiffs of the one part and the defendant of the other part agreed that in consideration of a payment by the defendant to the first, second and third plaintiffs of the sum of €1,400,000, the defendant would take an assignment of the first, second and third named plaintiff's interest in the contract dated 8th February, 2007, to purchase the site. The defendant thereupon paid Eugene Murphy the sum of €3,750,000 which was the agreed price of the lands as well as a further €1,400,000, to the first, second and third named defendants.
The agreement of 13th April, 2007, provided, inter alia:-
'IT IS HEREBY AGREED as between the Vendors and the Purchaser that as soon as practicable after the completion of this agreement Bennett McCleary Architects shall after appropriate consultation with the Purchaser cause a planning application for residential development to be lodged in respect of the lands comprised in Folio 135340F County Dublin and it is agreed between the parties hereto that in respect of each square foot of net apartment space (excluding common areas) over and above the square footage of 35,000sq ft achieved on foot of the planning application, the Purchaser will pay to the Vendors the sum of €165 per square foot it being understood and agreed as between the parties hereto that the consideration so payable shall be paid on the grant of a full planning permission without objection from any third party. The consideration aforesaid shall be payable 21 days after the date of issue of the aforesaid grant of full planning permission.'
A planning permission was lodged in or around July 2007 and planning permission was granted for the site. But on 31st July, 2008, An Bord Pleanála upheld a third party appeal and refused planning permission. Further discussions took place between the parties resulting in the fourth named plaintiff preparing a revised planning application in September 2008, engaging in discussions with Dublin City Council in October 2008 and then submitting a new planning application in November 2008. Nothing came of that application and in 2009, a planning application was made by the defendant for a nursing home development. The planning application was lodged by another firm of architects unconnected with the plaintiffs. Permission was granted in 2010 but the defendant did not proceed with the development.
On 21st October, 2016, some nine years after An Bord Pleanála refused to grant the fourth named plaintiff's...
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