Bronagh Cottor t/a Katie's Kitchens v Kane
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 11 April 2019 |
| Neutral Citation | [2019] IEHC 244 |
| Court | High Court |
| Docket Number | [2010 No. 6934 P.] |
| Date | 11 April 2019 |
AND
[2019] IEHC 244
[2010 No. 6934 P.]
THE HIGH COURT
Preliminary issue – Question of law – Litigation – Defendants seeking an order directing that a question of law be decided as a preliminary issue – Whether there was unanimity as to the precise facts or matters upon which such a preliminary issue should be determined
Facts: The plaintiff, Ms Cotter, sought: (a) specific performance of what she described as an exclusive agreement made on 9th November, 2006, for inter alia the design, supply and installation of kitchens and wardrobes in 30 houses being developed by the defendants, Messrs Kane, in Kilcoole, Co. Wicklow; (b) in the alternative or in lieu thereof damages for breach of contract and unjust enrichment, together with orders for all consequential or necessary consequential orders, inquiries, accounts and directions, further and other relief and the costs of the proceedings. The defendants, by notice of motion dated 21st March, 2018, sought: (a) an order pursuant to RSC Order 25 (1) directing that a question of law be decided as a preliminary issue being; ‘That the plaintiff is not entitled to re-litigate the within matter, the same issue having been litigated in a court of competent jurisdiction namely Wexford Circuit Court in proceedings entitled ‘John Kane and Michael Kane v Bronagh Cotter t/a Katie’s Kitchen’ bearing record number 481/2007, wherein judgment was granted in favour of the two named plaintiffs in that case being two of the defendants in this case and where the defendant in that case who is the plaintiff in this case applied to have the judgement set aside, was allowed to do so on condition that she pay money into court which she did not do, where the judgment stood and where she did not appeal the judgment.’ (b) an order pursuant to RSC Order 25 (2) dismissing the plaintiff’s claim.
Held by the High Court (Pilkington J) that, with regard to the trial of a preliminary issue, there appeared to be no unanimity as to the precise facts or matters upon which such a preliminary issue should be determined. Pilkington J found the phraseology within the notice of motion difficult to follow and perhaps inappropriate for the determination of a preliminary issue in any event. Given its lack of clarity Pilkington J declined to direct reliefs pursuant to RSC Order 25 (1).
Pilkington J held that she would refuse the reliefs sought by the defendants.
Reliefs refused.
By notice of motion dated 21st March, 2018 the defendants seek;
(a) Pursuant to RSC Order 25 (1) directing that a question of law be decided as a preliminary issue being;
“That the plaintiff is not entitled to re-litigate the within matter, the same issue having been litigated in a court of competent jurisdiction namely Wexford Circuit Court in proceedings entitled “John Kane and Michael Kane v Bronagh Cotter t/a Katie's Kitchen” bearing record number 481/2007, wherein judgment was granted in favour of the two named plaintiffs in that case being two of the defendants in this case and where the defendant in that case who is the plaintiff in this case applied to have the judgement set aside, was allowed to do so on condition that she pay money into court which she did not do, where the judgment stood and where she did not appeal the judgment.”
(b) An Order pursuant to RSC Order 25 (2) dismissing the plaintiff's claim.
From the affidavit grounding this motion and the papers submitted it appears that the history of this matter is as follows: -
(a) In Wexford Circuit Court in proceedings [2007 No. 481] between John Kane and Michael Kane v. Bronagh Cotter trading as Katie's Kitchen, the plaintiffs to those 2007 proceedings (the defendants in these 2010 proceedings save for the addition of Ronan Kane) issued proceedings arising from an oral contract entered into between the parties on 9th November, 2006 (“the 2007 proceedings”).
(b) Those proceedings were issued on 27th April, 2007, an appearance on 6th June, 2007 and particulars raised on 2nd July, 2007.
(c) On 15th August, 2007, the plaintiff entered judgment in the courts office for the sum of €14,238.90 together with €624 representing costs.
(d) On 8th October, 2007, a notice of motion issued for review of the judgment. The matter came before Her Honour Judge Doyle on that day and she directed that the judgment obtained in the office could be set aside provided that a sum of €14,000 was lodged within three weeks from that date (8th October). There was no appeal from that judgment and no monies lodged. Accordingly, the judgment of Doyle J. of 8th October, 2007 stands.
(e) There were then certain steps taken in an attempt to levy execution of the monies. A summons for attendance of a debtor took place on 19th June, 2008. Certain monies had been discharged by 2nd July, 2008, but there was still a significant balance outstanding.
(f) On 16th October, 2008, the District Court Judge directed that the defendant to those proceedings pay the balance to the plaintiffs (then €9,894.75) together with costs, expenses and interest pursuant to the Circuit Court order of 15th August, 2007, by way of weekly instalments in the sum of €100.
(g) By notice of appeal to the Circuit Court, this instalment order was appealed and the Circuit Court varied the instalment order to a weekly instalment of €50 per week – the first instalment to be paid on 29th May, 2009.
(h) On 27th July, 2010, the defendant ceased making any payments and, thereafter, failed to discharge the balance of the Circuit Court judgment until there was an undertaking given before me in court on 3rd October, 2018, that the balance would be discharged.
Thereafter, the above entitled proceedings issued in the High Court bearing record number [2010 No. 6939] on 22nd July, 2010. Within the Statement of Claim dated 28th June 2011: -
(a) The plaintiff seeks specific performance of what she describes as an exclusive agreement made on 9th November, 2006, for inter alia the design, supply and installation of kitchens and wardrobes in 30 houses being developed by the defendants in Kilcoole, Co. Wicklow.
(b) In the alternative or in lieu thereof damages for breach of contract and unjust enrichment, together with orders for all consequential or necessary consequential orders, inquiries, accounts and directions, further and other relief and seeking the costs of the proceedings.
It appears to be common case that an oral agreement was entered into by the parties on 9th November, 2006, that the plaintiff would install kitchens (she also asserts wardrobes) in a relatively modest development that the defendants were constructing. Payment of the deposit by the defendants to the above entitled proceedings (€14,230) was the sum sought by them in the 2007 proceedings which I have set out and described in more detail above.
As I understand it, the development has long since been completed. The plaintiff in the 2010 proceedings did not install any kitchens, an alternative contractor was engaged to complete the project and I understand that the houses have long since been sold.
The plaintiff seeks specific performance of a contract which is no longer capable of enforcement and the itemised claim of the plaintiff for damages totals just in excess of €76,400.
The initial issue before the court is two-fold: -
(a) whether the plaintiff is restricted to and entitled to the reliefs sought within the notice of motion seeking reliefs pursuant to O. 25 (1) and (2) of the...
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