Chambury Investment Company Ltd v Balark Investments Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Haughton |
| Judgment Date | 13 March 2018 |
| Neutral Citation | [2018] IEHC 130 |
| Court | High Court |
| Docket Number | [2017 Nos. 247 & 248 CA and 2017 No. 428 SP],Record No: 2017 / 247 & 248 CA Record No: 2017 / 428 SP |
| Date | 13 March 2018 |
[2018] IEHC 130
THE HIGH COURT
COMMERCIAL
(CIRCUIT COURT 2016 / GR021 & GR022)
Haughton
Record No: 2017 / 247 & 248 CA
Record No: 2017 / 428 SP
IN THE MATTER OF AN INDENTURE OF LEASE DATED 30 NOVEMBER 1839
MADE BETWEEN HENRY COURTNEY OF THE ONE PART AND WILLIAM CARSON OF THE OTHER PART
AND IN THE MATTER OF AN INDENTURE OF LEASE DATED 7 JULY 1858
MADE BETWEEN RICHARD WILLIAMSON OF THE ONE PART AND LOVEDY CARSON OF THE OTHER PART
Fee simple interests – Properties – Leases – Appellant seeking to appeal from decisions of the Circuit Court upholding awards of the County Registrar – Whether the respondent was entitled to acquire from the appellant the fee simple interests in adjoining properties
Facts: The High Court (Haughton J) delivered a composite judgement dealing with the following proceedings: (a) the proceedings bearing High Court Record Nos. 2017/248CA and 2017/247CA were appeals by Chambury Investment Company Ltd from decisions of the Circuit Court (Quinn J) made on 31 July, 2017, upholding awards of the County Registrar which found that Balark Investments Ltd was entitled, under the landlord and tenant ground rents legislation, to acquire from Chambury the fee simple interests in adjoining properties at the junction of Sir John Rogerson’s Quay and Lime Street, Dublin 2, that Haughton J referred to as “Lot 3” and “Lot 5”; and (b) the proceedings bearing High Court Record No. 2017/428SP, in which Balark sought various declarations concerning the interpretation of the respective leases under which it held Lots 3 and 5.
Held by Haughton J that the orders he proposed to make were as follows: (1) in relation to Lot 5, in Record No. 2017/247CA, Circuit Court Record No. 2016/GR021, an order affirming the order of Quinn J made on 31 July 2017 but substituting €10,000 for €15,000 as the purchase price for Lot 5; (2) in relation to Lot 3, in Record No. 2017/248CA, Circuit Court Record No. 2016/GR022, an order affirming the order of Quinn J made on 31 July 2017 but substituting €30,000 for €45,000 as the purchase price for Lot 3; (3) in the Special Summons proceedings Record No. 2017/428SP, in relation to the 1839 Lease (“the First Lease” as described in the Special Indorsement of Claim), Declarations in the terms of paragraphs 13, 14, 15 and 16; (4) in the Special Summons proceedings Record No. 2017/428SP, in relation to the 1858 Lease (“the Second Lease” as described in the Special Indorsement of Claim), Declarations in the terms of paragraphs 18, 19, 20 and 21.
Orders granted.
| Paragraph No. | Title |
| 2 | Background |
| 12 | Lot 3 - (1) Has Balark the right to acquire the fee simple? Legislative Provisions |
| 13 | 1839 Lease |
| 14 | Summary of arguments and issues |
| 18 | Construction of leases |
| 25 | Construing the 1839 Lease in context |
| 33 | Conclusion on construction of 1839 Lease |
| 34 | Section 9 (5) |
| 44 | Valuation of Lot 3 |
| 50 | Lot 5 – the issues |
| 51 | “Subsidiary and ancillary” |
| 61 | Evidence of use involving property held under other titles |
| 65 | Relevant evidence |
| 87 | Valuation of purchase price for lot 5 |
| 89 | Construing the 1858 Lease |
| 95 | Conclusion |
This is a composite judgement dealing with the following proceedings:
a) The proceedings bearing High Court Record Numbers 2017/248 CA and 2017/247 CA are appeals by Chambury Investment Company Ltd (“Chambury”) from decisions of the Circuit Court (Quinn J.) made on 31 July, 2017, upholding awards of the County Registrar which found that Balark Investments Ltd (“Balark”) was entitled, under the landlord and tenant ground rents legislation, to acquire from Chambury the fee simple interests in adjoining properties at the junction of Sir John Rogerson's Quay and Lime Street, Dublin 2, that I will refer to as “Lot 3” and “Lot 5”; and
b) The proceedings bearing High Court Record Number 2017/428 SP, in which Balark seeks various declarations concerning the interpretation of the respective leases under which it holds Lots 3 and Lot 5 (the “Declaratory Proceedings”).
There is an overlap between the two appeals and the Declaratory Proceedings, but as different issues arise in relation to the two properties, I will deal in this judgement first with Lot 3 and second Lot 5. First however there is some common background to the proceedings.
By Indenture of Lease dated 30 November, 1839, made between Henry Courtney of the one part and William Carson of the other part (the “1839 Lease”) Lot 3 was demised for a term of 250 years from 29 September, 1839.
By Indenture of Lease dated 7 June, 1858, made between Richard Williamson of the one part and Lovedy Carson of the other part (the “1858 Lease”) Lot 5 was demised for a term of 250 years from 25 March, 1858.
Lot 3 has 30 feet of frontage on Sir John Rogerson's Quay, and extends as a rectangular premises 256 feet southwards from the quay towards Hanover St. East. Lot 5 is a physical extension of Lot 3, being 30 feet in breadth, and extending 76 feet further south towards Hanover Street (but terminating short of that street), and also being rectangular. Lot 5 does not enjoy any direct access on to Sir John Rogerson's Quay, Hanover Street or Lime Street (which runs at some remove to the west of the two Lots, and links Sir John Rogerson's Quay to Hanover Street East). It is not disputed that buildings standing on Lot 3 and Lot 5 were constructed in 1909/1910 by the British and Irish Steam Packet Co Ltd (“B & I”), the then lessee under both leases. Lot 3 is covered in its entirety by those buildings which comprise of office at the front and part of a large warehouse to the south, which warehouse seamlessly incorporates part of Lot 5. The part of Lot 5 covered by warehouse comprises 47% of that lot, and terminates at the gable end of the warehouse. The remaining 53% of Lot 5 lying outside the gable wall is not built on. The warehouse as originally built, and until recent demolition of part, was extensive and covered large parts of Lots 4 and 6, which occupy substantial ground just west of Lots 3 and 5 respectively. In this western side the warehouse incorporated an outdoor loading bay area, and outside yard areas, which were accessed from Lime Street; the outside yard area within Lot 6 extended across the width of the warehouse gable end into the unbuilt part of Lot 5.
Lots 3 and 5 form part of a larger area at the Junction of Sir John Rogerson's Quay and Lime Street (the “Site”, comprising Lots 1-7 inclusive) which is located within Dublin's North Lotts and Grand Canal Strategic Development Zone. By Deed of Conveyance and Assignment dated 21 December, 2015, made between Trio Investment Trust of the One Part and Balark of the Other Part, Balark acquired the lessees’ interests in Lots 3 and 5 under the 1839 Lease and 1858 Lease respectively. Balark also thereby acquired a freehold title to Lot 1, at the corner of Lime Street and Sir John Rogerson's Quay, and leasehold titles to other parts of the Site comprised in Lots 2, 4, 6 and 7.
Dublin City Council has granted Balark multiple planning permissions to redevelop the entire Site. It was not in controversy that Balark intends to implement those planning permissions, and to do so on a phased basis, which would involve the demolition of all of the buildings currently standing on the Site, including the buildings currently standing on Lots 3 and 5, and to construct commercial office space and apartments in their place.
Chambury is the registered owner of the land comprised in Folio 119517F of the Register County Dublin, which includes Lots 3 and 5. Chambury acquired this freehold interest on 20 October, 2015.
By two Notices of Intention to Acquire the Fee Simple both dated 20 January, 2016, Balark's solicitors served notice on Chambury in accordance with section 4 of the Landlord and Tenant (Ground Rents) Act 1967 (“the 1967 Act”) 1. Balark claim to be entitled to acquire the fee simple interest and any other superior interests in Lots 3 and 5 under section 8 of the Landlord and Tenant (Ground Rents) (No. 2) Act 1978 (“the 1978 Act”) on the basis that there is compliance with the provisions of Section 9. Chambury has disputed this entitlement. By a decision handed down on 17 January, 2017, the County Registrar ruled in Balark's favour, and on 6 April, 2017, assessed the purchase price in respect of each lot. Chambury appealed to the Circuit Court, and by order dated 31 July, 2017, Quinn J. affirmed Balark's entitlement to acquire the fee simple interest but assessed somewhat higher purchase prices in respect of each lot.
As these are appeals from the Circuit Court to the High Court all parties are entitled to a de novo hearing. Accordingly, these appeals fall to be decided on the basis of the evidence before me, and without regard to the judgments or rulings of the learned Circuit Court Judge or the County Registrar. Although the documentation relating to the earlier hearings - including transcripts from the Circuit Court hearings - was tendered, I have not opened or read those books of documents. On very few occasions on cross examination of witnesses evidence previously given in the matters under appeal which was said to be inconsistent with evidence before this court was put to witnesses, but beyond this the evidence given before the County Registrar or Circuit Court has not been considered. I have considered both appeals on the evidence tendered in the High Court and by reference to the date of the two notices being 20 January 2016.
The Declaratory Proceedings were commenced by Special Summons dated 25 September, 2017, and are grounded on affidavits of Mr Patrick Crean, to which there is one replying affidavit of Mr...
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