Cardiff Meats Ltd v P.J. McGrath and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 26 June 2007 |
| Neutral Citation | [2007] IEHC 219 |
| Court | High Court |
| Docket Number | RECORD NO. 2006/81 CA |
| Date | 26 June 2007 |
[2007] IEHC 219
THE HIGH COURT
AND
AND
LYALL LAND LAW IN IRELAND 2ED 2000 694
MCALLISTER REGISTRATION OF TITLE IN IRELAND 1973 219
MCALLISTER REGISTRATION OF TITLE IN IRELAND 1973 220
RHONE v STEPHENS 1992 2 AC 310
LAW REFORM COMMISSION LAND LAW & CONVEYANCING LAW: POSITIVE COVENANTS OVER FREEHOLD LAND & OTHER PROPOSALS LRC 70-2003
LAW REFORM COMMISSION REPORT ON REFORM & MODERNISATION OF LAND LAW & CONVEYANCING LAW LRC 34-2004
DURHAM CONDOMINIUM CORPORATION v AMBERWOOD INVESTMENTS LTD 2002 58 OR 3d 481
HALSALL v BRIZELL 1957 1 CH D 169
CHATSWORTH INVESTMENTS LTD v CUSSINS (CONTACTORS) LTD 1969 AER 143
TITO v WADDELL (NO 2) 1977 3 AER 129 1977 CH D 106
LAW REFORM COMMISSION CONSULTATION PAPER ON REFORM & MODERNISATION OF LAND LAW & CONVEYANCING LAW LRC CP 74-2005 91 PARA 7.03
STATE PROPERTY ACT 1954 S10(4)(b)
LAND & CONVEYANCING LAW REFORM BILL 2006 CHAPTER 4
THAMESMEAD TOWN LTD v ALLOTEY 1998 30 HLR 1052 1998 3 EGLR 97
TULK v MOXHAY 1848 41 ER 1143
AUSTERBERRY v CORPORATION OF OLDHAM 1885 29 CH D 750
GAW v CORAS IOMPAIR EIREANN 1953 IR 232
LEASE
Covenant
Maintenance services - Shopping centre - Assignment of lease - Whether covenant positive - Enforceability - Enforceability of burden of positive covenant against successor in title to covenantor - Privity - Novation of contract - Whether implied - Halsall v Brizell [1957] Ch 169, Rhone v Stephens [1994] 2 AC 310, Thamesmeade Town Ltd v Allotey [1998] 30 HLR 1052, Austerberry v Oldham Corp (1885) 29 ChD 750 and Tulk v Moxhay (1848) 2 Ph 774 considered - Held that third parties having no liability to plaintiff in respect of covenant (2006/81CA - Murphy J - 26/6/2007) [2007] IEHC 219
Cardiff Meats Ltd v McGrath
This judgment concerned a preliminary issue as to the liability of the third parties arising out of the plaintiff’s appeal from a Circuit Court claim for damages for negligence, breach of contract and nuisance and an injunction requiring the defendants to carry out work as required pursuant to the schedule to a lease between the parties. By way of third party notice the defendants claimed an indemnity against the third parties, both of whom were unlimited private companies and the second named third party (notice party) was the successor of the first named third party. Essentially, the plaintiff claimed that the defendants failed, refuse and/or neglected the provide the maintenance service in respect of the premises let to the plaintiffs. The defendants argued that the third parties took the benefit and assumed the burden of the original convenantor and were therefore obliged to provide the services for at least as long as the leases subsisted.
Held by Murphy J. in determining the third party issue against the defendants: That the deed, upon which the defendants relied in making their third party claim, did not create any privity of contract as between the defendants and the third parties. The defendants were successors in title to the original covenantee under that deed in respect of part of the land. The notice party was successor to the original covenantors under that deed. Furthermore, there was no privity of estate between the parties. They were not in a landlord and tenant relationship and accordingly, none of the law governing the running of leasehold covenants was of any relevance. Consequently, neither of the third parties had any liability to the defendants or the plaintiff in respect of the covenant contained in the relevant deed or to the services listed in the Fifth Schedule thereto.
Reporter: L.O’S.
The plaintiff is a limited liability company having its registered office at Finglas Shopping Centre at Cardiffsbridge Road in Finglas. Its principal, John O'Dwyer, is a butcher. The defendants are the registered owners of Folio County Dublin 61046 F. By indenture of lease made 30th June, 1998 between Mallgate Limited of the first part and Dunlavin Bacon Company of the second part and in consideration of the rent, terms and conditions and covenants contained therein the predecessor to the defendants let, for a term of 35 years, the shop and premises known as Unit 8.
By transfer dated 16th December, 1991 Mallgate Limited transferred their freehold interest in that folio to the defendants.
The plaintiff claimed to have complied fully with the terms and conditions of the lease and has discharged all rents, rates and service charges retained thereunder. It was at all material times a term and/or condition of the said lease that the defendants covenanted to provide or cause to be provided the maintenance service in respect of the demised premises.
The plaintiff alleged that the defendants had failed, refused and/or neglected the maintenance and services outlined in the lease. Particulars were outlined in a letter to the defendants dated 13th May, 2003 in relation to the failure to cleanse, repair, renew, maintain and decorate, to maintain services, lighting, insurance, traffic control.
The third parties are successively the holders of the freehold title.
A preliminary issue has arisen as to their liability in relation to the maintenance and services of the common areas. This third party issue was heard after the plaintiff gave evidence.
By equity civil bill dated 11th July, 2003, the plaintiff claimed damages for negligence, breach of contract and nuisance and an injunction requiring the defendants to carry out work as required pursuant to the provisions of the Fourth Schedule to a lease between the parties dated 30th June, 1998. A further injunction was requested restraining the defendants from maintaining the common areas of Finglas Shopping Centre in such manner as to constitute a nuisance to the plaintiff.
By third party notice dated 1st June, 2004 the defendants claimed an indemnity against the third parties, both unlimited private companies, which notice was re-issued on 17th May, 2004. The second named third party (the notice party) is the successor of the first named third party.
On 8th October, 2004 the Circuit Court made an order by consent extending the time for the delivery of a defence by the third party.
On 12th October, 2004 solicitors for the third party served a notice for particulars on the plaintiff. In reply dated 20th January, 2005, the plaintiff referred to a freehold conveyance of 1st August, 1986 between H. Williams (Tallaght) Limited and Mallgate Limited (more particularly referred to in 2.0 below) in relation to whether there was a contractual or other legal relationship between those parties. The third party was well aware of its contractual obligations pursuant to the same conveyance whereby the third party, as successors to H. Williams (Tallaght) Limited is obliged to provide the defendants, as successors to Mallgate Limited, the services referred to therein. The defendants, in turn, were contractually bound to provide the said services for and on behalf of their various tenants, including the plaintiff.
By defence dated 13th October, 2005 it was denied that the defendants were entitled to be indemnified by the third party and that the third party was obliged to provide services at the shopping centre where the plaintiff was a tenant.
By order dated 1st March, 2005 the Circuit Court ordered that the issues between the plaintiff, the defendant and the notice party be tried together.
A further third party notice was issued against Dunnes Stores on 12th May, 2005 and the matter was set down for trial and heard by the Circuit Court which refused the plaintiff's claim.
By notice of appeal dated 27th March, 2006 the plaintiff appealed to the High Court. The grounding affidavit of Mr. Miller, on behalf of the plaintiff, referred to the proceedings being in the nature of a test case being taken by the plaintiff on behalf of other tenants of small shopping units in what he termed the Dunnes Stores Shopping Centre in Finglas. The proceedings concerned the ongoing failure on the part of the defendants to provide services to the shopping centre in accordance with the covenants in the leases concerned which had resulted in the shopping centre deteriorating into a poor state of repair to such a degree that businesses had suffered considerably, putting the livelihoods of the tenants at risk. It was averred by Mr. Miller that there was a serious crime, drug, graffiti, flooding, vandalism and other problems at the shopping centre which arose as direct consequences of the failure on the part of the defendant to provide services which included security. The defendant said that the obligation to provide these services rested with the third party, a matter that was disputed by the third party.
The appeal came before this Court on 8th May, 2007.
By indenture made 1st August, 1986 between H. Williams (Tallaght) Limited, Three Guys Limited and Mallgate Limited, certain premises were granted conveyed and assigned on to the purchaser together with a covenant with the purchaser and its assigns that the vendor would provide the services subject to payment by the purchaser of the service charges. The lands sold comprised nine units in the Finglas Shopping Centre, including the plaintiff's premises.
The services to be provided by the vendor were detailed in the Fifth Schedule in relation to maintenance, repair of the common areas including the car park, public toilets, plant, lifts, heating, cooling and ventilation equipment, cleaning equipment, as well as internal telephones, public address systems (if any) and piped music systems (if any). In particular the vendor covenanted to provide for the...
To continue reading
Request your trial