Cavanagh v Spring Homes Developments Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 25 June 2019 |
| Neutral Citation | [2019] IEHC 496 |
| Docket Number | [2009 No. 5151 P] |
| Court | High Court |
| Date | 25 June 2019 |
AND
AND
[2019] IEHC 496
Noonan J.
[2009 No. 5151 P]
THE HIGH COURT
Delay – Balance of justice – Inordinate and inexcusable delay – Defendant seeking to strike out the plaintiffs’ claim on grounds of delay – Whether the balance of justice favoured the dismissal of the motion
Facts: The plaintiffs, Mr and Mrs Cavanagh, were the owners of the property known as No. 15 Seabrook, Dromiskin, Dundalk, County Louth, which was a five bedroom detached dwelling house. The first defendant, Spring Homes Developments Ltd (the company), was the construction company that built the house. The second defendant, Mr Curran, was an engineer. The plaintiffs entered into a building agreement with the company on the 2nd October, 2006 whereby the company agreed to build the house in accordance with the relevant plans and specifications, the house to be completed within three months of the date of the contract. The consideration paid by the plaintiffs was in the sum of €385,000. Within a few months of the contract date, and by approximately March 2007, significant structural and other defects in the house emerged. In their statement of claim, the plaintiffs alleged that large cracks began appearing in the walls and nails began to pop out of the ground floor ceilings indicative of movement in floor joists. The plaintiffs pleaded that they instructed engineers to investigate these matters who found that stud partition walls on the first floor were supporting the roof and acting as structural walls when they were not capable of performing that function. The floor joists were allegedly too far apart requiring bridging support. Many other serious defects were identified in the statement of claim. The plaintiffs also complained that the house was sold to them as having habitable rooms on three floors which included the attic space but in fact no planning permission was obtained for this. Consequently, the plaintiffs said that Mr Curran’s written opinion that the house complied with planning permission was clearly erroneous and given negligently. They similarly complained that his opinion regarding compliance with the building regulations was manifestly wrong. As a result of all these matters, the plaintiffs alleged that the house was uninhabitable and they had suffered loss and damage. Mr Curran brought a motion to strike out the plaintiffs’ claim on grounds of delay.
Held by the High Court (Noonan J) that the periods of delay, particularly the last, could only be described as inordinate and as no satisfactory explanation had been forthcoming from the plaintiffs for those delays, they must also be regarded as inexcusable.
Noonan J held that, having borne in mind that the dismissal of the claim against Mr Curran would result in the plaintiffs being left without any remedy in respect of alleged defects in their family home so serious that they had been unable to live in it for many years despite the works carried out by Premier Guarantee, the balance of justice just about favoured the dismissal of this motion. Noonan J brought the matter immediately into case management so that it could be brought to trial at the earliest opportunity.
Motion dismissed.
The within motion is brought by the second defendant (‘Mr. Curran’) to strike out the plaintiff's claim on grounds of delay.
The plaintiffs are husband and wife and the owners of the property known as No. 15 Seabrook, Dromiskin, Dundalk, County Louth which is a five bedroom detached dwelling house. The first defendant (‘the company’) is the construction company that built the house. The second defendant is an engineer. The plaintiffs entered into a building agreement with the company on the 2nd October, 2006 whereby the company agreed to build the house in accordance with the relevant plans and specifications, the house to be completed within three months of the date of the contract. The consideration paid by the plaintiffs was in the sum of €385,000.
In fact, it would appear that the house was probably largely complete by the date of the contract because Mr. Curran provided expert certification of the house's compliance with planning permission and building regulations in May, June and August of 2006. These opinions were furnished by the company to the plaintiffs for title purposes and the plaintiffs say they relied upon them.
Within a few months of the contract date, and by approximately March 2007, significant structural and other defects in the house emerged. In their statement of claim, the plaintiffs allege that large cracks began appearing in the walls and nails began to pop out of the ground floor ceilings indicative of movement in floor joists. The plaintiffs plead that they instructed engineers to investigate these matters who found that stud partition walls on the first floor were supporting the roof and acting as structural walls when they were not capable of performing that function. The floor joists were allegedly too far apart requiring bridging support. Many other serious defects are identified in the statement of claim.
The plaintiffs also complain that the house was sold to them as having habitable rooms on three floors which included the attic space but in fact no planning permission was obtained for this. Consequently, the plaintiffs say that Mr. Curran's written opinion that the house complied with planning permission was clearly erroneous and given negligently. They similarly complain that his opinion regarding compliance with the building regulations was manifestly wrong.
As a result of all these matters, the plaintiffs allege that the house is uninhabitable and they have suffered loss and damage.
As part of the purchase agreement, the company provided the plaintiffs with the benefit of structural defects insurance cover taken out with Premier Guarantee. It would appear that the plaintiffs made a claim initially on foot of this insurance which resulted in Premier Guarantee's engineers carrying out a structural survey of the house.
In his defence, Mr. Curran denies the plaintiff's claim and pleads that any opinions provided by him were not provided in a personal capacity but rather as an employee of Keough Curran Ltd who were retained by the first defendant company and are solely for the benefit of that company. Accordingly, he says the plaintiffs are not entitled to rely on the opinions as Mr. Curran owed them no duty. He denies that the opinions were incorrect. Various other pleas are raised about the plaintiffs failing to mitigate their losses and Mr. Curran also says that any liability rests with the first defendant against whom he has claimed indemnity.
It is of some significance to note that there is a close association between Mr. Curran and the company. In the affidavits sworn by him grounding this application, he gives his address as No. 14 Seabrook, Dromiskin, County Louth. This is next door to the plaintiffs” house. In the various engineering certificates executed by Mr. Curran, he gives the company's address as 14 Seabrook, Dromiskin, County Louth, his home. In his affidavit replying to Mr. Curran's application herein, the first plaintiff avers (at para. 30) that Mr. Curran was intimately involved in the running of the company and with the construction of the property.
In written and oral submissions at the hearing of this application, it was submitted on behalf of the plaintiffs that Mr. Curran was in effect the builder. The plaintiffs” current expert engineer, Mr. Desmond Kirwan Browne offers the view in the reports exhibited in the plaintiffs” replying affidavit that Mr. Curran effectively carried out the duty of a resident engineer/architect. The extent to which Mr. Curran disputes these facts is unclear, although it should be emphasised that the case as pleaded against him does not make these allegations. The evidence does however appear to suggest that Mr. Curran was most likely the guiding mind of the company.
2nd October, 2006 – Building contract executed.
Circa March 2007 – Structural defects appear.
25th June, 2009 – The plenary summons issued.
5th August, 2009 – Appearance of the second defendant.
8th October, 2009 – Statement of claim delivered.
8th November, 2010 – Second defendant's notice for particulars.
25th November, 2010 – Second defendant's defence.
February 2011 – Premier Guarantee commenced work on the house to rectify the structural defects. The costs of these works amounted to approximately €135,000 which is claimed by the plaintiffs herein by way of subrogation as part of their claim.
25th August, 2011 – Plaintiffs” replies to particulars.
9th September, 2011 – Second defendant's notice of indemnity/contribution.
14th September, 2011 – First defendant's notice of indemnity/contribution.
13th October, 2011 – Second defendant's notice for further and better particulars.
21st November, 2011 – First defendant's application to stay the proceedings pending arbitration. The application was opposed by the plaintiffs on the basis that the second defendant was unwilling to participate in the arbitration and thus staying the proceedings would have resulted in increased costs and delay, an argument which the court appears to have accepted in refusing the application. It is noteworthy that while this application was presumably made on the instructions of Mr. Curran in his capacity as a director of the company, in his personal capacity he was unwilling to participate in the arbitration. This may however arise because the litigation against him personally is being dealt with by his professional indemnifiers.
23rd March, 2012 – Plaintiffs” replies to notice for further and better particulars.
10th June, 2013 – Notice of change of solicitor was served on...
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