O'Connor (plaintiff) v P. Elliott and Company Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 04 March 2010 |
| Neutral Citation | [2010] IEHC 167 |
| Court | High Court |
| Date | 04 March 2010 |
[2010] IEHC 167
THE HIGH COURT
BETWEEN
AND
SOUTH SHROPSHIRE DISTRICT COUNCIL v AMOS 1987 1 AER 340 1986 1 WLR 1271
O'FLANAGAN v RAY-GER LTD & ORS UNREP COSTELLO 28.4.1983 1983/11/3316
RYAN v CONNOLLY 2001 1 IR 627 2001 2 ILRM 174 2001/21/5755
CUTTS v HEAD & ANOR 1984 CH 290 1984 2 WLR 349 1984 1 AER 597
MCGRATH EVIDENCE 2005 PARA 10.112
MCGRATH EVIDENCE 2005 PARAS 10.113-10.114
BRADFORD & BINGLEY PLC v RASHID 2006 1 WLR 2066 2006 4 AER 705
ABRAHAMSON & ORS DISCOVERY & DISCLOSURE 2007 PARA 36.22
MCGRATH EVIDENCE 2005 PARA 10.130
TOMLIN v STANDARD TELEPHONES & CABLES LTD 1969 3 AER 201 1969 1 WLR 1378
WALKER v WILSHER 1889 23 QBD 335
MCGRATH EVIDENCE 2005 PARA 10.116-10.119
MCDERMOTT CONTRACT LAW 2001 81
WINN v BULL 1877-78 7 CH D 29
KELLY v PARK HALL SCHOOL LTD 1979 IR 340
MULHALL v HAREN 1981 IR 364 1981/6/985
BOYLE v LEE & GOYNS 1992 1 IR 555 1992 ILRM 65 1991/11/2563
SUPERMACS IRL LTD & MCDONAGH v KATESAN (NAAS) LTD & SWEENEY 2000 4 IR 273 2001 1 ILRM 401 2000/17/6423
JODIFERN LTD v FITZGERALD 2000 3 IR 321 1999/14/4003
GUARDIAN BUILDERS LTD v KELLY & PARK AVENUE LTD 1981 ILRM 127 1981/10/1674
STATUTE OF FRAUDS (IRL) 1695
VENDOR & PURCHASER ACT 1874
CONTRACT
Specific performance
Oral contract - Statute of Frauds - âÇÿWithout prejudice' privilege - Authority of solicitor to act for defendant - Effect of correspondence post-agreement - Whether correspondence headed âÇÿwithout prejudice' privileged - Whether concluded agreement - Whether adequate note or memorandum to satisfy Statute of Frauds - Whether solicitor authorised to act on defendant's behalf - South Shropshire District Council v Amos [1986] 1 WLR 1271; O'Flanagan v Ray-Ger Limited (Unrep, HC, Costello J, 28/4/1983); Ryan v Connolly [2001] 1 IR 627; Bradford & Bingley plc v Rashid [2006] UKHL 37, [2006] 1 WLR 2066; Cutts v Head [1984] 1 Ch 290 and Tomlin v Standard Telephones and Cables Ltd [1969] 1 WLR 1378 considered - Winn v Bull (1877) 7 Ch D 2, Guardian Builders Limited v Kelly [1981] 1 ILRM 127 and Mulhall v Haren [1981] 1 IR 364 approved; Kelly v Park Hall School [1979] IR 340, Boyle v Lee [1992] 1 IR 555, Supermac's Ireland Ltd and McDonagh v Katesan (Naas) Ltd [2000] 4 IR 273 and Jodifern Ltd v Fitzgerald [2000] 3 IR 321 applied -Statute of Frauds (Ireland) 1695 (7 Will 3, c 12) - Vendor and Purchasers Act 1874 (37 & 38 Vic, c 78) - Relief granted(2008/4997P - Murphy J - 4/3/2010) [2010] IEHC 167
O'Connor v Elliott and Company Ltd
Facts: The plaintiff claimed an order for specific performance of a contract made by way of oral agreement as to the sale of premises for the sum of €960,000, €100,000 of which was in respect of the subsoil. It was alleged that correspondence constituted a memorandum for the purposes of the Status of Frauds (Ireland) 1695. The plaintiff claimed that from the letter of reply from the Solicitors for the defendant and subsequent correspondence, that the oral agreement became enforceable for the purposes of the Status of Frauds. The issue arose as to what was agreed, the concluded agreement and subsequent correspondence and the evidential status of correspondence marked "without prejudice."
Held by Murphy J. that in respect of the premises including the basement and subsoil, that there was evidence in writing between the parties, which accorded with the requirements of the Status of Frauds (Ireland) 1695. Subsequent correspondence did not affect that agreement. The agreement formed an open contract subject to the Vendor and Purchaser Acts 1874. The Court would amend the general endorsement of claim to include reference to the letter of 18 July, 2007. The Court would order specific performance of the agreement as evidenced in writing.
Reporter: E.F.
JUDGMENT of Mr. Justice Roderick Murphy delivered on the 4th day of March, 2010.
The plaintiff's claim is for specific performance of a contract which he alleges was made between him and the defendant on 27 th February, 2007, by way of oral agreement which was evidenced in writing on 5 th June, 2007 in respect of the sale of the plaintiff's premises at 1 A and 2, Usher's Quay, at the corner with Usher Street, in the City of Dublin to the defendant company for the sum of €960,000, €100,000 of which was in respect of the subsoil. Mr. O'Connor alleges that correspondence from the defendant's solicitor of that date and of 18 th July, 2007, notwithstanding that both were marked "without prejudice", constitutes a memorandum for the purpose of the Statute of Frauds.
By way of background the property had been owned by the plaintiff's family for many years and had been the location of the family's printing business which was taken over by the plaintiff on the death of his father. The plaintiff at all material times owned the property, having inherited the business from his father and having bought out the interest of his siblings in the property following the death of his parents.
The possibility of entering into an agreement with the defendant for the development of the property arose on foot of a previous approach by the defendant to the plaintiff in late 2004. Negotiations ensued and a development agreement was entered into between the parties in January 2005 which is referred to in the Statement of Claim. At that time the defendant was in the process of developing lands and premises formerly known as the Abbey Garage, No. 3 - 10 Usher's Quay, Dublin 8, and had approached the plaintiff with a proposal for the sale and development of his adjoining property.
That agreement provided, inter alia, that the plaintiff would not object to the defendant's actual and/or proposed application for permission to develop the adjoining property and that both the plaintiff's property and the adjoining property would be developed together.
Early in 2006 it was agreed between the plaintiff and the defendant that the development agreement would be varied so that the property and adjoining property would be developed separately. In the course of 2006 and 2007 the defendant commenced works and substantially completed the development of the adjoining property.
The plaintiff alleged that, in consequence of the said works, the plaintiff's right to light on the east side of the property was obliterated and it was further claimed that the works had severely disrupted the business of the plaintiff.
On 26 th January, 2007 the defendant indicated that it no longer intended to honour the agreement between the parties but, following further discussion and negotiations, a meeting was held at the Merchant Café on 27 th February, 2007, recorded in an e-mail from Mr. Mark Elliott, a director of the defendant company, whereby the plaintiff agreed to sell and the defendant agreed to purchase the property for the sum of €860,000 subject to conditions that were discussed at a meeting of 3 rd April with the parties' solicitors and which were set out in a letter from the solicitors for the plaintiff dated 25 th May, 2007, subject to modifications on 28 th May, 2007. No reference was made to an easement to develop the subsoil at that stage.
The plaintiff claims that, by letter of reply from the solicitors for the defendant dated 5 th June, 2007, and in certain subsequent correspondence, the oral agreement of 27 th February, 2007 became enforceable for the purpose of the Statute of Frauds.
The plaintiff's solicitors' letter of 25 th May, 2007 set out details of the agreed transaction as understood by their client in relation to 1A and 2 Usher's Quay and the development at Mellowes Quay. Under the heading of "disturbance" it was stated that compensation in the sum of €22,500 would be paid to the plaintiff at the same time as the consideration of €860,000 and that further consideration in respect of the basement/subsoil was to be paid to him.
The defendant was to block up the property at 1A Usher Street and ensure that 2 Usher Street continued to be fit for the plaintiff's company, Dot Binding & Labels Ltd., to operate its business until such time as redevelopment commenced.
The plaintiff was to seek tax advice and, if changes were proposed which improved the tax position of the plaintiff, then the defendant would act reasonably towards accepting such changes.
Valuers were to meet to commence negotiations regarding consideration for the basement/subsoil.
No building work, which would interfere with the plaintiff's light, was to be carried out until such time as the defendant had acknowledged and accepted terms of the agreement and once compensation for the basement had been agreed and finalised.
The reply of 5 th June, 2007, was in response to that letter. In relation to 1A and 2 Usher's Quay, six out of eight of the terms contained in the letter of 28 th May were agreed. It was not agreed that the defendant be responsible for the maintenance of the plaintiff's property and ensuring that it would be fit for the purpose of carrying out the business of Dot Binding & Labels Ltd.
It was agreed that the deed of easement proposed to be granted to the defendant in respect of the redevelopment of 1A and 2 Usher's Quay, above ground level, should not be assigned to a third party without the consent of the plaintiff, which consent would not be unreasonably withheld.
In relation to the Mellowes Quay development all three of the terms contained in the plaintiff's letter were agreed.
The terms relating to disturbance were agreed as discussed in a telephone conversation. The maintenance was, as indicated above, not agreed and the tax advice was noted and agreed.
The letter of 18 th July 2007, headed as indicated,...
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O'Mahony v Promontoria (GEM) DAC
...in structure 109 With regard to the significance of a change in structure the decision of O'Connor v P. Elliott and Company Limited [2010] IEHC 167 suggests that the mode of transfer of property is not necessarily, depending on the circumstances of the case, a matter that affects the enfor......
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O'Mahony v Promontoria (Gem) DAC
...solicitors. If support were needed for this conclusion, I find it in the decision of Murphy J. in O'Connor v P. Elliot & Co. Limited, 2010 IEHC 167, where a change in mode of transfer for tax reasons was held not to be a matter of substance. At paragraph 9 of his judgment, he states: 'Inde......