Camiveo Ltd v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 15 May 2015
• Neutral Citation: [2015] IESC 43
• Court: Supreme Court
• Docket Number: [S.C. No. 333 of 2014],[Appeal No: 333/14]
• Date: 15 May 2015

[2015] IESC 43

THE SUPREME COURT

Clarke J.

Laffoy J.

Charleton J.

[Appeal No: 333/14]

Between

Camiveo Limited

Plaintiff/Respondent

and

Dunnes Stores

Defendant/Appellant

Commercial property – Leases – Landlord"s interest – Respondent seeking entitlement to landlord"s interest in leases – Whether respondent is entitled to enforce the interest of the landlord under the leases

Facts: The defendant/appellant, Dunnes Stores, held the interests of the lessee in three leases at Edward Square Shopping Centre and Eyre Square Shopping Centre in Galway City. The plaintiff/respondent, Camiveo Ltd, claimed to be entitled to the landlord's interest in those leases and, thus, to be entitled to collect rent and service charges arising under the leases in question. The point on which Dunnes rested its defence to those proceedings concerned a contention that Camiveo is not yet entitled to enforce the interest of the landlord under the leases in question or has not established an entitlement to do so. The proceedings were commenced in the High Court by summary summons. Hogan J determined that Dunnes had not met the test for being given leave to defend, and gave liberty to enter final judgment to Camiveo for recovery of arrears of rent, service charges and interest in the sum of €1,134,392.32 together with the costs of the proceedings. Dunnes appealed to the Supreme Court against that finding. In addition, Dunnes sought to introduce additional evidence; the question of the admission of that additional evidence was itself closely connected to a question of whether Dunnes was truly entitled to rely, in pursuing its appeal, on grounds connected with the first registration of Camiveo's interests in the Shopping Centres for the purposes of the land registry. The first issue, which remained alive by the time the case was argued before the Supreme Court, concerned the fact that the deed of assurance by which Camiveo had acquired the Shopping Centres had, while executed by the vendor, Radical, not been executed by Camiveo. On that basis, Dunnes argued that Camiveo had not been shown to be entitled to the landlord's interest in the leases in question. The second issue which Dunnes sought to canvas before the Supreme Court was the evidence that suggested that Camiveo had not yet become the registered owner of the Shopping Centres. It was in that regard that Dunnes brought a motion seeking to admit new evidence. In that context, a question arose as to whether, in the light of s.25 of the Registration of Title Act 1964, Camiveo is entitled to enforce the lease until such time as first registration of their interest in the Shopping Centres is effected with Camiveo as the registered owner.

Held by Clarke J that, having relied upon Norton, A Treatise on Deeds 2nd Ed (London, 1928), it was manifestly clear that Camiveo was bound, as a matter of common law, by the terms of the lease in favour of Dunnes insofar as that lease may place any obligations or burdens on the landlord; that was so because Camiveo had taken the benefit of the deed of assurance of the ownership of those lands in its favour and could not, therefore, escape any burdens which flow from that ownership. Clarke J held that the trial judge was correct to take the view that there was no merit whatsoever in the execution point and to refuse leave to defend on that basis. Clarke J held that Dunnes was precluded from making any argument which suggested that Radical would not have been entitled to first registration, and had not put forward any basis for suggesting that the entitlement of Radical did not fully pass to Camiveo. Clarke J held that there was no basis for suggesting that Camiveo is not entitled to first registration. On that basis Clarke J was satisfied that Camiveo was entitled to enforce the entitlements of the landlord under the leases with Dunnes, including requiring the payment of rent and service charges.

Clarke J held that it was appropriate to allow Dunnes to argue the issue raised as to whether s.25 of the 1964 Act in its current form precludes Camiveo from enforcing the obligation to pay rent and service charges under the relevant leases until such time as Camiveo becomes registered on foot of an application for first registration. In that context, Clarke J admitted the new evidence referred to in Dunnes" motion. However, Clarke J was not satisfied that the point was of any merit. Clarke J was satisfied that the fact that the deed of assurance by which Camiveo acquired the Shopping Centres was not, at the time when the case was at hearing before the High Court, executed by Camiveo, did not prevent Camiveo from being able to enforce the relevant leases against Dunnes. It followed that the appeal was dismissed and the order of the High Court affirmed.

Appeal dismissed.

Judgment of Mr. Justice Clarke delivered the 15th May, 2015.

1. Introduction

1.1 One of the more recent knock-on effects of the collapse and partial recovery of the Irish property market has been the sale of a significant amount of commercial property subject to existing leases. This case arises out of such a sale. The defendant/appellant ('Dunnes') holds the interests of the lessee in three leases at the Edward Square Shopping Centre and Eyre Square Shopping Centre in Galway City ('the Shopping Centres'). The plaintiff/respondent ('Camiveo') claims to now be entitled to the landlord's interest in those leases and, thus, to be entitled to collect rent and service charges arising under the leases in question. Dunnes does not in any way question the validity of the relevant leases or, at least in broad terms, the obligation to pay the sums in question. The narrow point on which Dunnes has rested its defence to these proceedings concerns a contention that Camiveo is not yet entitled to enforce the interest of the landlord under the leases in question or, perhaps, has not established an entitlement so to do.

1.2 These proceedings were commenced in the High Court by summary summons. In the ordinary way, a motion for judgment was brought which came to be heard before the Court. Hogan J. determined that Dunnes had not met the test for being given leave to defend, and gave liberty to enter final judgment to Camiveo for recovery of arrears of rent, service charges and interest in the sum of €1,134,392.32 together with the costs of the proceedings. Dunnes has appealed to this Court against that finding. In addition, in the context of this appeal, Dunnes has sought to introduce additional evidence. However, the question of the admission of that additional evidence was itself closely connected to a question of whether Dunnes was truly entitled to rely, in pursuing its appeal, on grounds connected with the first registration of Camiveo's interests in the Shopping Centres for the purposes of the land registry. In order properly to understand those questions, it is necessary to turn briefly to the issues which remained alive by the time this case was argued before this Court.

2. The Issues

2.1 It should be recorded that a range of issues was initially canvassed by Dunnes in correspondence as to why it was not obliged to pay the rent and service charges demanded by Camiveo. Further, and to some extent different, issues were initially canvassed before the High Court. However, by the time the case came to be argued before this Court, there were only two, potentially connected, issues remaining, and one of them was an issue which Camiveo asserted, at least to some extent, that Dunnes ought not be allowed to pursue because it had not been argued before the High Court.

2.2 The first issue, which was argued before the High Court, concerned the fact that the deed of assurance by which Camiveo had acquired the Shopping Centres had, while executed by the vendor ('Radical'), not been executed by Camiveo. On that basis, Dunnes argued before the High Court that Camiveo had not been shown to be entitled to the landlord's interest in the leases in question and had not, therefore, been shown to be entitled to collect the rent and service charges in respect of which the proceedings were brought. That question turned on the issue of whether the absence of execution of the relevant documentation by Camiveo created any legal difficulty in Camiveo being entitled to enforce the obligations of the tenant, i.e. Dunnes, under the leases.

2.3 The second issue which Dunnes sought to canvas before this Court was, at least in one respect, connected. It would appear that there may be evidence to suggest that Camiveo has not yet become the registered owner of the Shopping Centres. It was in that regard that Dunnes brought a motion seeking to admit new evidence. That Camiveo was not yet registered was accepted by counsel for Camiveo in the course of the hearing before us. In that context, a question arose as to whether, in the light of s.25 of the Registration of Title Act 1964 ('the 1964 Act'), (as substituted by s.128 of the Land and Conveyancing Law Reform Act 2009 ('the 2009 Act')) Camiveo is entitled to enforce the lease until such time as first registration of their interest in the Shopping Centres is effected with Camiveo as the registered owner. That question involves an interpretation of s.25 of the 1964 Act and is, for reasons which I will set out, a very net question of law not involving any disputed issues of fact. It should also be recorded that, while maintaining formal opposition to Dunnes being entitled to argue the point in question by virtue of the fact that it had not been argued in the High Court, counsel for Camiveo did suggest that there might be some importance to the parties in having that issue resolved, for, it was accepted, the same issue had the potential to arise in respect of any further proceedings which might be brought for any continuing failure to pay rent and service charges. Against the background of those issues, I turn...