Blackall v Blackall

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 06 June 2000
• Neutral Citation: [2000] IEHC 151
• Court: High Court
• Docket Number: [1999 No. 214 C.A.]
• Date: 06 June 2000

[2000] IEHC 151

THE HIGH COURT

Finnegan J.

No. 214 CA/1999

BLACKHALL v. BLACKHALL & CHESINGTON LTD

IN THE MATTER OF THE PARTITION ACTS, 1868/1874

BETWEEN

GERARD BLACKALL (AND BY ORDER IRIS BLACKALL AS PERSONAL REPRESENTATIVE)

PLAINTIFF

AND

EILEEN BLACKALL AND ROSE BLACKALL

DEFENDANTS

AND

(BY ORDER OF THE COURT) CHESINGTON LIMITED

CO-DEFENDANT

Citations:

INCORPORATED LAW SOCIETY GENERAL CONDITIONS OF SALE (1991) CONDITION NO 2

INCORPORATED LAW SOCIETY GENERAL CONDITIONS OF SALE (1991) CONDITION NO 3

INCORPORATED LAW SOCIETY GENERAL CONDITIONS OF SALE (1991) CONDITION NO 5(a)

INCORPORATED LAW SOCIETY GENERAL CONDITIONS OF SALE (1991) CONDITION NO 31

DANIELL CHANCERY PRACTICE 7ED V1 415, 716–717 & 904–905

SUDGEN VENDOR & PURCHASER 109

AG V DAY 1749 1 VES SEN 218

BANK OF IRELAND V SMITH 1966 IR 646

BANK OF IRELAND V WALDRON 1944 IR 30

DALBY V PULLEN 1831 RUSS & M 296

BANNISTER, IN RE: BROAD V MUNTON 1879 12 CH D 131

HALSBURYS LAWS OF ENGLAND 4ED V42 PARA 135

SMITH V NELSON 2 SIM & STU 557

BERRY V JOHNSON 2 YO & COL 564

CONNOLLY V KEATING (NO 2) 1903 1 IR 356

UNION BANK V MUNSTER 37 CH D 51

MYTON LTD V SCHWAB-MORRIS 1974 1 WLR 331

KRAMER V ARNOLD 1997 3 IR 43

DAMON SA V HAPAG-LLOYD SA 1985 1 WLR 435

MILLICHAMP V JONES 1983 1 AER 267

NORTON ON DEEDS 2ED 91

MORONEY V MORONEY IR 8 CL 174

LEEK & MOORLANDS BUILDING SOCIETY V CLARKE 1952 2 AER 492

DEAN V WILSON 10 CH D 136

RSC O.41 r7

SALE OF LAND BY AUCTION ACT 1867

ORIENTAL BANK CORPORATION, IN RE 56 NTLS 868

WYLIE JUDICATURE ACTS

BARTLETT, IN RE 16 CH D 561

MUNSTER BANK V MUNSTER MOTOR CO 1922 IR 15

LONGVALE BRICK & LIME WORKS LTD, IN RE 1917 1 CH 321

Synopsis

Contract

Contract; real property; partition or sale of premises; premises held by parties as tenants in common; Circuit Court ordered that premises be sold to the purchaser; defendants refused to comply with this order delaying the sale; during the period of delay the premises greatly appreciated in value; defendants now appeal from subsequent decision of Circuit Court on an application for directions by the solicitor having carriage of the sale; whether or not an enforceable agreement concluded; whether the payment of the deposit was a condition precedent or a condition of the contract; whether bidding may be reopened on the grounds that the failure of the purchaser to pay the deposit was improper conduct; Partition Acts, 1868 – 1874.

Held: Appeal dismissed; defendants bound by original sale.

Blackall v. Blackall - High Court: Finnegan J. - 06/06/2000 - [2000] 3 IR 456

The proceedings concerned a dispute over the sale of a premises. The Circuit Court issued an order of sale in respect of the premises in 1995. Thereafter delays were encountered in completing the contract of sale due to various court proceedings and difficulties in obtaining vacant possession. In the intervening period the premises had appreciated greatly in value to the extent that the value was now more than twice the original price. The defendants who were tenants in common of the property (along with the plaintiff) refused to complete the sale and purported to rescind the contract of sale on the grounds that the deposit had not been paid. Finnegan J held that that the obligation to pay the deposit arose on the date of sale and had not been paid. However the defendants did not have the power to interfere with the sale and the proper course would have been to apply to the court for directions. The purported termination of the contract of sale was thereby invalid. The court could not find any evidence of improper conduct and so declined to reopen biddings. The contract of sale was accordingly in full force. The purchaser must however pay interest on the deposit from the date of sale to the date of completion.

1 JUDGMENT of Finnegan J. delivered 6th June, 2000.

2 This Matter comes before the Court by way of an appeal from the decision of the Circuit Court on an application for directions by the Solicitor having carriage of a sale pursuant to an Order of the Circuit Court the original order for sale having been made on the 23rd July, 1991. While the factual matrix is clear and undisputed save in one particular, namely whether the purchaser (who was added as a co-Defendant to the application for directions) Chesington Limited ("the purchaser") was at any material time in sufficient funds to enable it to comply with its obligations under the order for sale. A number of legal issues arise upon which the law or the application of the law to the facts is uncertain.

FACTUAL BACKGROUND

3 The Action commenced on the 21st January, 1991 by Equity Civil Bill issued by Gerard Blackall, Plaintiff against Eileen Blackall and Rose Blackall, Defendants (together called "the parties") seeking partition or sale of premises Marino Park, Blackrock, Co. Dublin ("the premises"). The parties are entitled to the premises as tenants in common, the Plaintiff as to one undivided quarter share, the first named Defendant as to one undivided quarter share and the second named Defendant as to one undivided half share. By Order dated the 23rd July, 1991 it was ordered that the premises be sold by public auction subject to the approval of the Court and to such conditions of sale as should be settled by the Court and carriage of the sale was given to the Plaintiff's Solicitor Mr James O'Higgins. This Order was appealed to the High Court and on the 20th July, 1992 the High Court ordered the sale of the premises subject to the approval of the Court and to such conditions of sale as should be settled by the Court. The matter again came before the High Court on the 30th October, 1992 when it was ordered that the Solicitor for the first named Defendant Brendan Moloney ("the Solicitor having carriage") should have carriage of the sale. The first named Defendant discharged the Solicitor having carriage and a Notice of Change of Solicitor was filed in the matter on the 16th June, 1993. The High Court by order dated 15th December, 1993 confirmed that the Solicitor having carriage should have carriage of the sale notwithstanding the circumstance that he no longer acted for any party to the Action. By Order of the Circuit Court made on the 19th July, 1995 it was ordered that the premises be sold to the purchaser for the sum of £400,000 and liberty was given to the County Registrar or his authorised officer to sign the contract for sale in default of signing by any of the parties.

4 The contract of sale was available in Court on that day and it was signed on behalf of the purchaser. It was not however, signed by or on behalf of the Plaintiff or the Defendants then or at any later time. By that order the Defendants were allowed six months from the date of signing the contract to deliver vacant possession.

5 That order in turn was appealed to the High Court and by order of the High Court made on the 12th February, 1997 the order for sale was confirmed.

6 As the contract for sale was exhibited on affidavit before the Circuit Court on the 19th July, 1995 and as the order expressly refers to "the contract" it is indisputable that the sale approved by the Court was a sale upon the terms of that contract.

7 The delay in progressing the matter from the 19th July, 1995 to date was due to a determination by the Defendants that the sale should not be completed and in addition to appealing the order they refused to yield up vacant possession so that it was necessary inter alia to have them evicted by the Sheriff to make vacant possession available for the purchaser. The Defendants refused to sign an assurance to the purchaser. The delay in completing the sale was not in any way attributable to the Plaintiff or to the purchaser.

8 During the period of delay the premises have appreciated greatly in value. On the 7th December, 1998 the Defendants had obtained an offer of £1,040,000 for the premises. On the 11th December, 1998 the Solicitors to the Defendants wrote to the Solicitors to the purchasers in which they said -

"We would respectfully remind you that there is no contract for sale signed herein by the vendors or otherwise. Nor indeed, a contract deposit paid."

9 The Solicitors to the purchaser replied on the 16th December, 1998 in effect stating that their client had an enforceable agreement to purchase the premises. By letter dated 17th December, 1998 the Solicitors to the Defendants wrote to the Solicitors to the purchasers as follows-

"Many thanks for your letter of 16th December, 1998 re the above. Our clients Eileen and Rose Blackall have no contractual or legally cognisable obligations to your clients.

Without prejudice to our entitlement to so contend, insofar as there may be some contractual obligations to your client in respect of the transfer of the above lands take notice that we rescind the contract because your client does not comply with such obligations as he may have under it. We shall endeavour to ensure that such deposit as may have been paid is returned to your client promptly."

10 The Plaintiff at that time was willing to complete the sale to the purchaser and maintained this position at all times up to and including the hearing before me. On the evidence given by the purchaser's Solicitor I am satisfied that he was in funds to pay the deposit as of the 19th July, 1995 but was awaiting confirmation of the contract being signed by the parties. The deposit was tendered by him on the 18th May, 1999.

THE CONTRACT FOR SALE

11 The contract for sale in is the Incorporated Law Society of Ireland standard form 1991 edition and is signed on behalf of the purchaser. It provides in the memorandum for a deposit of £40,000. The special conditions are not relevant to the issues raised on this application. The following general conditions are relevant.

12 General Condition 2

13 "Date of sale" means the date of the auction when the sale...