Collins & Anor -v- Duffy & Anor, [2009] IEHC 290 (2009)

Docket Number:2008 8310 P
Party Name:Collins & Anor, Duffy & Anor
Judge:Finlay Geoghegan J.





GARY DUFFY AND JOE CALLANDEFENDANTS JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 26th day of June, 2009

  1. The plaintiffs are husband and wife and engaged in property development. The defendants are property developers.

  2. By an agreement in writing made on 12th September, 2007, the plaintiffs agreed to sell and the defendants agreed to purchase the lands comprised in folio 8328 of the Register of Freeholders, County Dublin, in consideration of 6.3 million ("the Contract"). The defendants paid to the plaintiffs a non-refundable deposit of 630,000 pursuant to the Contract. The Contract provided a closing date of 30th July, 2008. The defendants obtained planning permission for eighteen houses on 1st August, 2008. In the summer of 2008, the plaintiffs and the defendants agreed to a six-week extension and a new completion date of 12th September, 2008.

  3. The defendants failed to complete the contract on 12th September, 2008. By letter of 16th September, 2008, the solicitors for the defendants indicated that their clients had now arranged for a survey of the property and that a preliminary report had been provided, indicating that there was a discrepancy between the Property Registration Authority map for folio 8328, County Dublin, and the actual boundaries on the ground. They indicated that they were seeking a map clearly indicating the extent of the discrepancy and that they were uncertain as to the "full extent or relevance of the discrepancy". They indicated that they hoped a map would be prepared prior to the end of the week and would send it for comments. No such map was sent.

  4. There was further correspondence in the second half of September, including an allegation made on behalf of the plaintiffs that one of the defendants had indicated that he did not intend completing the purchase of the property. Specific performance proceedings were threatened and a plenary summons issued on 9th October, 2008, claiming specific performance of the Contract, damages, and other ancillary reliefs.

  5. At the end of the hearing, the plaintiffs, through their counsel, indicated that they were opting to pursue a claim for damages in lieu of specific performance and not seeking an order for specific performance of the Contract. The defendants each gave evidence of their current inability to raise finance to complete the Contract. It is common case that the plaintiffs are only entitled to damages in lieu of specific performance if they establish an entitlement to an order for specific performance of the Contract.

  6. The defendants admit the Contract and raise no issue as to its validity. They defend the claim for specific performance on three grounds.

    (i) The Contract was contingent upon the plaintiffs ensuring that the first named plaintiff and/or his associates purchased from a company owned by the defendants, Pecan Investments Limited, two units to be built by it at the development to be known as Metro Point Business Park, Kettles Lane, Swords, County Dublin, for a total price of 2,266,800.00 plus VAT.

    (ii) The plaintiffs did not serve a completion notice pursuant to condition 40 of the general conditions of sale and in the absence of same are not entitled to maintain proceedings for specific performance.

    (iii) The plaintiffs were not ready, willing and able to complete the sale of the property at the time of the issue of the plenary summons by reason of the alleged discrepancy in relation to the western boundary of the site and an issue as to whether or not the stream along the western boundary forms part of the property the subject matter of the sale.

    Kettles Lane Property

  7. It is not in dispute that at the end of 2006 or early 2007, the first named plaintiff and his business partner, Niall Doyle, put a booking deposit on two units being developed by the defendants' company, Pecan Investments Limited, at Metro Point Business Park, Kettles Lane, Swords, County Dublin. It is further agreed that ultimately the plaintiff and Mr. Doyle determined not to proceed with the proposed purchase by reason of a potential increased stamp duty liability on the transactions and that the booking deposits were returned. I have concluded, on the oral evidence of the first named plaintiff, Mr. Michael Greene (the auctioneer and valuer for the plaintiffs) and the defendants, and find as a fact that there was not even an oral agreement making the purchase by the defendants of the property in folio 8328, County Dublin, pursuant to the Contract, contingent on the purchase of the two units at Kettles Lane, Swords, County Dublin.

  8. Irrespective of the existence of any oral agreement, condition 5 of the special conditions of the Contract provides, "it is hereby further agreed that this document contains the entire terms and conditions of the agreement between the parties hereto ….." I am satisfied that the Contract does contain the entire terms and conditions of the agreement between the parties in relation to the sale and purchase of the lands in folio 8328, County Dublin, and was not contingent on any purchase by the first named plaintiff of units at...

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