O'Brien v Kearney

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 03 March 1995
• Neutral Citation: 1995 WJSC-HC 1339
• Docket Number: No. 1447P/1994
• Court: High Court
• Date: 03 March 1995

1995 WJSC-HC 1339

THE HIGH COURT

No. 1447P/1994

O'BRIEN v. KEARNEY

BETWEEN

RICHARD O'BRIEN

PLAINTIFF

AND

PADRAIG KEARNEY

DEFENDANT

Citations:

GENERAL CONDITIONS OF SALE CONDITION 40

GENERAL CONDITIONS OF SALE CONDITION 33(c)

CURTIN V KURZKE 1971 1 WLR 769

KEATING & ORS V BANK OF IRELAND 1983 ILRM 295

Synopsis:

SALE OF LAND

Contract

Completion - Vendor - Demand - Notice - Service - Failure of purchaser to complete sale by date specified in notice - Vendor claimed specific performance of contract - Purchaser claimed abatement of purchase price for existence of undisclosed right of way - Vendor not entitled to serve completion notice while in default - (1994/1447 P - McCracken J. - 3/3/95) - [1995] 2 ILRM 232

|O'Brien v. Kearney|

1 Judgment of Mr. Justice McCracken delivered on the 3rd of March 1995.

2 This is an action arising from a contract dated 18th November, 1993 and made between the Plaintiff and the Defendant whereby the Defendant agreed to purchase from the Plaintiff some 33 acres of land in County Westmeath together with the Plaintiff's milk quota of 28,015 gallons net. In the events that happened the closing date was 20th December, 1993. The sale was not completed on the closing date and on 2nd February, 1994 the Plaintiff served a Completion Notice on the Defendant pursuant to general conditions 40 and 41 of the Conditions of Sale. The service of such notice required the Defendant to complete the sale within 28 days and in that respect time was to be of the essence of the contract. The Defendant has refused to complete the sale and the Plaintiff issued these proceedings seeking specific performance of the contract and damages. The Defendant has counter-claimed for specific performance with an abatement of the purchase price, claiming that he is entitled to be compensated by reason of various defects in the land.

3 To fully understand the dispute between the parties, it is necessary to outline the nature and condition of these lands. They formed part of a very much larger holding, but their real value lay in the fact that there was a milk quota attached to them. There appears to be agreement that the value of the milk quota was about £2 per gallon, and accordingly £56,000 of the £105,000 purchase price was in respect of the milk quota, and the lands themselves were worth in the region of £50,000. The lands almost surrounded a large field which was not owned by the Plaintiff and was not included in the sale. On the north east and south west of this field there was reasonably good grazing land but on the south east and south the land fell away into a boggy marshy area, which ultimately, beyond the lands being sold, led into bog land. The field in the centre was owned by a Mr. Colclough, and for convenience I will refer to it as the green lands, as that is how it is marked on the maps that were used in Court. A track ran along the south eastern side of the green lands and at the most southerly point of the green lands there was only a narrow passageway the width of the track included in the lands in sale. To the south of this was a further small field or paddock known as the bog garden, which was also in the ownership of Mr. Colclough. I will refer to this field as the blue lands. There was an opening from this track into the green lands and also an opening into the blue lands some 30 yards further down the track.

4 The other relevant physical feature is that there was a laneway running along the north western boundary of the lands sold, over which a right of way was granted, and on the far side of the laneway was a yard used by the Plaintiff which contained a slatted house or cattle shed with a slurry pit and a large silo for holding silage. A ditch ran between the laneway and the lands being sold which ultimately crossed part of the lands being sold.

5 The lands were to be auctioned on 18th November, 1993 and there was a considerable interest shown by a number of prospective purchasers, probably primarily due to the inclusion of the milk quota. On 16th November, 1993 the Defendant inspected the lands with the Plaintiff and Mr. Charles Smith of the Auctioneers firm. There is a very serious conflict of evidence as to what took place in the course of this inspection, and also as to the condition of the property, and in particular of the track at the south west of the green land at that time. The Plaintiff, in evidence, stated that he had had the track cleared so that people could walk the land easily, and that when he came to the entrance to the green lands he pointed this out to the Defendant, and then walked some 30 yards up the track to the blue lands, stepped into it and said that it was also excluded and that the same man owned both fields. He said that the gaps into the fields were quite obvious. On the other hand, the Defendant says that he was told nothing about the blue lands, that the track was overgrown although it looked as if a tractor had passed over it, and that he did not see the gap into the green lands as it was also overgrown. His evidence is that he believed that the blue lands were included in the sale.

6 The matter is somewhat complicated by the fact that unfortunately the brochure issued by the Auctioneers contained a map which was inaccurate, and which did in fact show the blue lands as being part of the lands being sold. It is clear that the Defendant had never seen any other map before he walked the lands, and accordingly if the blue lands were not pointed out to him as being excluded, he had every reason to consider them as being included. There is evidence from two other witnesses which I will refer to later, and which is very relevant in resolving this dispute.

7 The auction duly took place on 18th November, 1993 and was attended by the Defendant and his brother in law, a Mr. Murphy who is an engineer. The lands were knocked down to the Defendant for £105,000 and the parties then went into another room to sign the contract documents. Both the Defendant and Mr. Murphy gave evidence that at this stage the Defendant was in a very excitable and nervous state, and indeed I think it is quite possible that he thought he had paid too much for the lands. When the contract was produced, Mr. Murphy saw that the blue lands were in fact excluded, but said nothing at the time. He did, however, point it out to the Defendant a couple of days later. It should be said that the blue lands consist of just over two thirds of an acre of very poor land which one witness said may well be reclaimed bog.

8 In reply to the standard requisition as to whether there were any easements or rights affecting the property, the Plaintiff's Solicitors replied "none save as appears from the documents of title furnished or on inspection of the property". They also confirmed that clear vacant possession of the entire property would be available and that no person was in adverse possession of the property or any part thereof.

9 On 22nd January, 1994 the Defendant inspected the lands with Mr. Murphy. Mr. Murphy's evidence is that he was asked to do so to check that everything was in order before closing, and in particular to check that the fencing was satisfactorily carried out in accordance with the contract. The Plaintiff was not present during this inspection. In the course of the inspection Mr. Murphy noticed a number of matters which concerned him, and went back to his car and got a camera and took a number of photographs which have been put in evidence. It is quite clear from these photographs that the openings to the green lands and the blue lands were very...