Claystone Ltd and Others v Eugene Larkin and Others
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] IEHC 89 |
| Court | High Court |
| Date | 14 March 2007 |
[2007] IEHC 89
THE HIGH COURT
AND
RSC O.19 r28
BARRY v BUCKLEY 1981 IR 306
SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425
SUPERMACS (IRL) LTD & MCDONAGH v KATESAN (NAAS) LTD & SWEENEY 2000 4 IR 273 2001 1 ILRM 401
JODIFERN LTD v FITZGERALD 2000 3 IR 321
SUDBROOK TRADING EST v EGGLETON 1982 1 AER 444
STATUTE OF FRAUDS 1695 S2
MCQUAID v LYNAM 1965 IR 654
MACKIE v WILDE 1998 2 IR 570 1995 1 ILRM 468 1995 3 1094
STEADMAN v STEADMAN 1976 AC 536
COSMOLINE TRADING LTD v DH BURKE & SON LTD & DHB HOLDINGS LTD UNREP FINNEGAN 8.2.2006 2006 IEHC 38
CARPENTERS ESTATES LTD v DAVIES 1940 1 AER 13
WOLVERHAMPTON CORPORATION v EMMONS 1901 1 KB 515
AMERICAN CYANAMID CO v ETHICON LTD 1975 1 AER 504
CONTRACT
Building contract
Specific performance - Application for injunction restraining defendants from building house other than in terms agreed - Application to strike out proceedings - Whether reasonable cause of action disclosed - Whether proceedings frivolous or vexatious - Whether concluded agreement between parties - Whether agreement evidenced by note or memorandum - Whether building contract or contract for sale of land - Whether acts of part performance - Whether bona fide question to be tried - Adequacy of damages - Balance of convenience - Mackie v Wilde (No. 2) [1998] 2 IR 578, Supermac's Ireland v Katesan (Naas) Ltd. [2000] 4 IR 273, Jodifern Ltd. v Fitzgerald [2003] 3 IR 321 and Sun Fat Chan v Osseous Ltd. [1992] 1 IR 425 applied; Barry v Buckley [1981] IR 306 - Statute of Frauds 1695 (7 Will 3, c 12), s 2 - Interlocutory injunction granted (2007/966P - Laffoy J - 14/3/2007) [2007] IEHC 89
Claystone Ltd v Larkin
Judgment of Miss Justice Laffoy delivered on 14th March, 2007
This judgment deals with two applications:
(1) The plaintiff's application on foot of a notice of motion dated 9 th February, 2007 seeking an interlocutory injunction restraining the defendants from erecting on the lands known as Site No. 14 Redwood, Ratoath Road, Hollystown, Dublin 15 (the Site) any building or structure (or any part thereof) other than a detached dwelling house constructed in accordance with plans and drawings in respect of which planning permission has been granted by Fingal County Council under planning register reference No. SO6A/0800 (the 2006 planning permission) pending further order of the court.
(2) The defendants' application on foot of a notice of motion dated 21 st February, 2006 seeking alternatively:
(a) an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts, 1986 striking out the statement of claim herein on the grounds that it discloses no reasonable cause of action and/or on the grounds that the plaintiffs' claim is frivolous and/or vexatious; or
(b) an order pursuant to the inherent jurisdiction of the court striking out the proceedings herein on the grounds that the plaintiffs' claim is frivolous, vexatious and/or bound to fail.
The primary relief claimed by the plaintiffs on the plenary summons, which issued on 9 th February, 2007, is specific performance of an agreement made between the plaintiffs and the first defendant whereunder the first defendant agreed to have the second and third defendants' construct for the second and third plaintiffs a detached dwelling house on the Site in accordance with the plans and drawings in respect of the 2006 planning permission and to assure the Site with the completed dwelling house thereon to the second and third plaintiffs.
The statement of claim was delivered on 19 th February, 2007. The facts set out in paras. 5 to 9 thereof, which are not in dispute, form the factual backdrop to the current dispute and disclose the following:
· By a contract in writing dated 20 th April, 2004 made between the first plaintiff and the first defendant (in trust) the first defendant agreed to purchase certain lands at Hollystown, Dublin, 15 comprising approximately six acres from the first plaintiff for the sum of €3.45 million. It is clear on the evidence that the lands in question included the Site.
· That contract contained special condition 13, which provided as follows:
"The Purchaser agrees to sell to the Vendor or its nominees two completed four-bedroom dwelling houses in the proposed development by the Purchaser of the property in sale, for a consideration of €185,000 each, as soon as possible after receipt by the Purchaser of planning permission for the proposed development and after commencement of the site development works and this covenant shall be binding upon the Purchaser, its successors, administrators and assigns. The Purchaser shall enter into a Deed of Covenant with the Vendor in respect of the sale of the two dwelling houses in a form to be agreed by the Vendor prior to the completion of the sale herein. The Purchaser's solicitors shall furnish a draft Deed of Covenant prior to completion for approval herein to the Vendor's solicitors."
· The purchase was completed on 11 th November, 2004 when the purchase monies were paid and the lands (including the Site) were assured to the first defendant.
· For the purposes of special condition 13, the first plaintiff nominated the second and third plaintiffs as the parties to whom the houses were to be sold. On 11 th November, 2004 the Deed of Covenant contemplated by the special condition was executed by both the first defendant and the second and third plaintiffs. On the same date a second Deed of Covenant was entered into by the same parties in relation to the building of a further detached dwelling house.
· It was agreed that once a layout plan was available showing the purchased lands divided into sites, the second and third plaintiffs would be entitled to choose two of the sites upon which the detached dwelling houses were to be built and the third site would be chosen by the first defendant.
It is not in issue that the Site was one of the two sites chosen by the second and third plaintiffs under the first Deed of Covenant of 11 th November, 2004. It is an essential element of the plaintiffs' case that the reason the Site was chosen was because it backed onto the residential property of the second and third plaintiffs, affording them an opportunity to enlarge the Site thereby rendering it likely that planning permission could be obtained for a larger house than was authorised by the planning permission which had been obtained by the defendants under planning register reference No. 505A/747 (the 2005 planning permission). It is also an essential part of the plaintiffs' case that the second and third plaintiffs' objective was to acquire a larger house which would be a suitable residence for their son, Ciaran Barry, his wife, Rose Barry, and their two young children. This is pleaded.
The core elements of the plaintiffs' case are to be found in paras. 11 and 13 of the statement of claim. In para. 11 it is pleaded that in October, 2005 the possibility of enlarging the Site and obtaining planning permission for a larger dwelling house was discussed between the second plaintiff and the first defendant. It is alleged that it was agreed between them that an application would be made by the second defendant for planning permission for a larger house in accordance with plans and drawings which would be prepared in consultation between the defendants' architects and Ciaran Barry. It is further alleged that it was agreed that in the event of a suitable planning permission being obtained the defendants would implement the same, the cost of €185, 000 being increased pro rataby reference to the increase in the floor area of the house.
The planning application which led to the July planning permission was submitted to the planning authority by the defendants' architects, John F. O'Connor & Associates, in the name of the second defendant. The 2006 planning permission issued on foot of a notification of decision to grant permission dated 25 th July, 2006 for a change of house type from a two-storey, four-bed detached house with recreation room in the attic area (total 189.27 sq. mtrs.) to a two-storey, four-bed detached house with study and bedroom in attic area and with a sun room to the side (total 296 sq. mtrs.). It is clear on the evidence that the planning fees and the architect's fees in connection with the application for the revised permission were discharged by Ciaran Barry.
In para. 13 the plaintiffs allege that, having obtained the July, 2006 planning permission, all necessary changes in and revision of specifications were discussed and agreed between Ciaran Barry and Michael Larkin, who is a son of the first defendant and a director of the corporate defendants, on diverse dates from the second half of August up to 11 th December, 2006.
Before considering what the defendants have to say about the allegations contained in paras. 11 and 13 of their defence, it is useful to record how the dispute between the parties which gives rise to these proceedings has come about. Towards the end of October, 2006 the defendants commenced implementing the 2006 planning permission on the Site and laid the foundations for the larger house permitted under that planning permission. However, a dispute arose between the parties in January of this year. The nub of the dispute was that the defendants asserted that they were not contractually bound to build the larger house in accordance with the 2006 planning permission on the Site and they embarked on the development of the Site in accordance with the 2005 planning permission. The evidence...
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