Clydaville Investments Ltd v Setanta Centre
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 20 October 2021 |
| Neutral Citation | [2021] IEHC 694 |
| Court | High Court |
| Docket Number | [Record No. 2020/233 CA] |
In the Matter of the Landlord and Tenant (Amendment) Act 1980 (As Amended)
[2021] IEHC 694
[Record No. 2020/233 CA]
THE HIGH COURT
Tenancy – Strike out – Bound to fail – Respondent seeking to strike out the proceedings – Whether the appellant’s claim to a new tenancy was bound to fail
Facts: The plaintiff/appellant, Clydaville Investments Ltd, appealed to the High Court against the order of Linnane J in the Circuit Court that the plaintiff was precluded from claiming a new tenancy in the demised premises due to the fact that the defendant/respondent, Setanta Centre, as landlord, was entitled to rely on s. 17(2)(a) (i) and (ii) of the Landlord and Tenant (Amendment) Act 1980. The Circuit Court judge found that the defendant had a complete defence to the plaintiff’s claim to a new tenancy in the demised premises, as it had a final planning permission to demolish and redevelop the entire building, of which the demised premises formed a part, and had an intention to carry out the redevelopment on the basis of the planning permission that it had. As this was a circuit appeal, the matter was heard de novo before the High Court. Accordingly, the defendant moved its original motion that the court should exercise its inherent jurisdiction to strike out the plaintiff’s action on the basis that its claim to a new tenancy was bound to fail.
Held by Barr J that, given the high bar that must be reached in order to obtain an order under the inherent jurisdiction of the court to strike out a claim as being bound to fail, the court was not satisfied that it could be said that it would be impossible for the plaintiff to succeed in its application before the Circuit Court, for the reason that if the plaintiff was successful in its High Court action, it may very well be able to defeat the defendant’s defence pursuant to s. 17 of the Act.
Barr J refused the defendant’s application to strike out the proceedings pursuant to its inherent jurisdiction on the basis that the plaintiff’s claim to a new tenancy was bound to fail. The court was of the view that it would in all probability be easier and quicker if the substantive application by the plaintiff to a new tenancy were heard before the Circuit Court in the usual way. Accordingly, the court refused to direct the trial of a preliminary issue.
Application refused.
JUDGMENT of Mr. Justice Barr delivered electronically on the 20th day of October, 2021
This is an appeal by the plaintiff/appellant against the order of Linnane J. in the Circuit Court that the plaintiff is precluded from claiming a new tenancy in the demised premises due to the fact that the defendant/respondent, as landlord, was entitled to rely on sub-s. 17(2)(a) (i) and (ii) of the Landlord and Tenant ( Amendment) Act 1980. In essence, the learned Circuit Court judge found that the defendant had a complete defence to the plaintiff's claim to a new tenancy in the demised premises, as it had a final planning permission to demolish and redevelop the entire building, of which the demised premises formed a part, and had an intention to carry out the redevelopment on the basis of the planning permission that it had.
As this was a circuit appeal, the matter was heard de novo before the High Court. Accordingly, the defendant moved its original motion that the court should exercise its inherent jurisdiction to strike out the plaintiff's action on the basis that its claim to a new tenancy was bound to fail.
The defendant is the owner of the freehold title to a large commercial site known as the Setanta Centre, Nassau Street, Dublin 2.
The plaintiff is the tenant to the defendant of two premises in the Setanta Centre. The premises the subject matter of this application comprises 1,412 square feet of office space on the first floor of the Setanta Centre, which it held pursuant to a sub-lease from the Commissioner of Public Works in Ireland for the period 31st December 1988 to 31st March, 2013.
The plaintiff is also tenant to the defendant of a large ground floor unit, which fronts onto Nassau Street in Dublin. This unit is used as a retail shop premises. It also contains a café at a mezzanine level within the unit. These proceedings only relate to the first floor office premises.
In essence, the defendant makes the following submissions as to why the court should exercise its inherent jurisdiction to strike out the plaintiff's claim to a new tenancy as being bound to fail: It was submitted that the essential facts in the case are not in dispute. The plaintiff was the tenant of a portion of the first floor under a sub-lease, which expired in March 2013. The plaintiff instituted its claim seeking a new tenancy in the premises by civil bill issued on 6th April, 2016. In December, 2018 the defendant obtained planning permission for the demolition and redevelopment of the Setanta Centre, with the exception of the ground floor retail unit occupied by the plaintiff. That planning permission became final by virtue of a grant of permission by An Bord Pleanála in May 2019. The defendant is desirous of carrying out the development in accordance with the terms of its planning permission. Indeed, it has already incurred considerable expense in having its demolition contractors carry out a “soft strip” of the Setanta Centre, such that it is essentially now just a shell, with just the exterior walls remaining in place.
In these circumstances, it was submitted that the case clearly comes within the provisions of s.17 of the 1980 Act; meaning that the defendant has an absolute defence to the plaintiff's claim to a new tenancy. It was submitted that it is appropriate for the court to exercise its inherent jurisdiction and strike out the plaintiff's claim for a new tenancy as being bound to fail. The defendant accepts that the plaintiff would be entitled to compensation for disturbance in lieu of a new tenancy.
In response thereto, it was submitted on behalf of the plaintiff that there was a very high bar for a defendant to reach to persuade the court that it should strike out the plaintiff's claim as being bound to fail; in effect, it meant that the defendant had to persuade the court that it would be impossible for the plaintiff to be successful at the trial of the action.
It was submitted that in the circumstances of this case, it was not sufficient for the defendant landlord merely to establish that he had planning permission for redevelopment of the site, to include the demised premises. The burden of proof lay on the defendant to establish not only that it had planning permission and that it had the intention to carry out the works under that permission, but also that there was no other impediment to the landlord proceeding on the basis of the permission that it had obtained.
It was submitted that in this case there was a serious impediment in the form of allied proceedings that had been instituted by the plaintiff before the High Court in respect of the ground floor retail unit. In those proceedings the plaintiff had claimed a number of quasi property rights in the nature of easements that it alleged it enjoyed over portions of the premises that were proposed to be demolished by the defendant. It was submitted that it could not be said that the defendant would definitely be successful in its defence pursuant to s.17 of the 1980 Act, unless and until the plaintiff had failed in its High Court proceedings. It was submitted that in these circumstances, it would be inappropriate and unjust for this Court to dismiss the plaintiff's claim in limine, when there was considerable doubt as to whether the defendant would be in a position to establish its defence pursuant to s.17 at the trial of the action.
It was further submitted on behalf of the plaintiff that the defendant should be denied the relief that it sought in its notice of motion, due to the fact that it had delayed for six months between May 2019, when it had obtained final planning permission and November 2019, when it issued the within notice of motion. It was further submitted that the present proceedings were an attempt by the defendant to circumvent the protection that was afforded to the plaintiff under s.28 of the 1980 Act, which provided that a tenant was entitled to remain in the property while its claim to a new tenancy under Part II of the Act was being determined. It was submitted that the present application was an inappropriate application by the defendant designed to circumvent the protection afforded to the plaintiff by that section.
As can be seen from the brief outline of the arguments put forward by the parties, there is a long and acrimonious history between the parties in relation to the redevelopment of this site. The court has formed the view that in considering this application, it cannot look solely at the circumstances of the plaintiff and defendant as landlord and tenant of the demised premises; it has to take account of the wider issues that arise, in considering how best to exercise its inherent jurisdiction. For that reason, it will be necessary to set out in a little detail the background to this dispute.
The background to these proceedings can be briefly stated in the following way: By indenture of lease dated 6th February, 1981, CIN Properties Limited demised a portion of the first floor of the Setanta Centre comprising 18,670 square feet to the Commissioner of Public Works in Ireland for the term of 35 years from 1st April, 1978. As already noted, by a sub-lease executed in or about 1988, the Commissioner of Public Works in Ireland sublet a portion of the first floor premises, comprising 1,412 square feet of office space to Blarney Woollen Mills Limited for the term 31st December, 1988 to 31st March, 2013. By order of the...
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