Conroy v Fitzpatrick
| Jurisdiction | Ireland |
| Judge | Mr Justice Lavan, |
| Judgment Date | 18 December 2003 |
| Neutral Citation | 2003 WJSC-SC 1999 |
| Court | Supreme Court |
| Date | 18 December 2003 |
2003 WJSC-SC 1999
THE HIGH COURT
BETWEEN:
and
Mr Justice Lavan, delivered on the 18th day of December, 2003
This dispute arises out of the purchase of premises at 7/8 Mount Street Crescent. Dublin 2. Numbers 7 and 8 are interconnected buildings and shall hereinafter be referred to as "the premises". The plaintiff seeks, inter alia, a declaration that the defendant holds the premises on trust for himself and the plaintiff in equal shares
The plaintiff claims that at all material times the defendant held himself out as an auctioneer and a valuer/agent, at all times acting on behalf of the plaintiff in the said negotiations and discussions and at all times acting on behalf of the plaintiff and the defendant in this agreement to purchase the said properties as equal partners.
The plaintiff alleges that the defendant's conduct represents a breach of contract, and that the defendant was guilty of misrepresentation, fraudulent misrepresentation and reckless disregard for the plaintiff's interests in conducting the said negotiations and formalising the purchase of the premises in his own name to the detriment of the plaintiff, despite the fact that it was represented to the plaintiff that the defendant at all times was acting on his behalf and on behalf of the aforementioned partnership. *???query??????atively, the defendant is guilty of negligence and breach of duty towards ???query?????? The plaintiff also alleges that the defendant is in breach of the Sale of goods Supply of Services Act, 1980.
*???query?????? defendant denies the existence of any agreement or partnership between ???query?????? to buy the premises, and denies that the purchase of the premises in his ???query?????? was in breach of any agreement with the defendant. He denies that he ???query?????? behalf of the plaintiff, in his capacity as an auctioneer or otherwise, in the ???query?????? of the property. He denies all allegations of misrepresentation and ???query?????? He further alleges that if any agreement existed between the parties, such agreement is unenforceable in the absence of a note or memorandum in writing sufficient to satisfy the Statute of Frauds.
As this is a case where there is a considerable dispute as to the facts, I propose to first set out a chronology of events:
The plaintiff and defendant had been friends for approximately twenty years. Both had been employed in a variety of positions over the years but by late 1997 the plaintiff had a building company and the defendant was an auctioneer and estate agent, and he also ran a residential furnishing agency which offered a decorating and furnishing service to landlords. In late 1997 the defendant was one of a number of tenants in premises known as 7/8 Mount Street Crescent. The property, which consisted of two interconnecting buildings, was owned by a firm of engineers. In late 1997 the defendant noticed two people whom he knew to be estate agents inspecting *???query??????. This alerted him to the fact that the property might be coming on the ???query?????? defendant got in touch with a Mr. Wilkinson who was his point of contact ???query?????? owners of the premises. Mr Wilkinson told him to write a letter to the ???query??????ating that he had an interest in purchasing the buildings. Mr Wilkinson also ???query?????? mention that he had earlier shown interest in buying the buildings in 1996.
The defendant wrote to the owners on the 15 th January, 1998, offering IR£560.000 for the buildings. The defendant admitted that prior to making the offer he had discussed the matter with the plaintiff. The plaintiff alleges that discussions at that time went much further, and that in fact at that time the parties agreed to purchase the property together.
In any event, this offer was rejected and the owners informed the defendant, through Mr Wilkinson, that there was another party interested in the premises. The owners asked the defendant to make a tender for the property.
The defendant told the plaintiff of this development, and then on the 17 th February, 1998, made a tender of £605,375. The circumstances of this second offer are also the subject of a conflict of evidence. However, it is not in dispute that that offer was accepted, and around the 24 th or 28 th February, 1998, the defendant was informed by Mr Wilkinson by telephone that the tender had been successful.
At either the very end of February or early March the plaintiff asked the defendant whether the tender had been accepted, and the defendant told the plaintiff that it had. The conversation between the plaintiff and defendant subsequent to this announcement, and their subsequent contact with Mr Robert Walsh, solicitor, are the subjects of a conflict of evidence.
*???query??????not in dispute that the plaintiff and defendant met Mr Walsh, who was the ???query??????olicitor. outside his offices as they were walking down the street together,a???query?????? Walsh was at that time informed that the plaintiff and defendant were ???query?????? premises at 7/8 Mount Street Crescent, and that Mr Walsh was asked to act in ???query??????.
???query?????? after that day, the plaintiff and defendant met to discuss the purchase, and the. defendant told the plaintiff that he wanted to retain his brother-in-law Mr Murchan. who was also a solicitor, instead of Mr Walsh. There was some disagreement between them at this meeting, the details of which are the subject of a conflict of evidence.
Further discussions took place between them at later dates and the plaintiff asked the defendant who the solicitors for the vendor were. The defendant told the plaintiff that he had not yet been informed of that. The plaintiff asked Mr Walsh to contact the defendant directly on these matters.
Robert Walsh contacted the defendant several times about the purchase and asked him several times if he knew the name of the solicitors acting for the vendor so that he could write to them for the contracts. Mr Walsh gave evidence that on one occasion he wrote out a fax asking for the contracts in relation to the premises and stating that he acted for the purchaser. He then phoned the defendant to find out to whom he was to send the fax, but either he did not get through to the defendant or the defendant still did not have the name, and the fax remained unsent. The unsent fax was produced in evidence. It was dated 12 thMarch, 1998.
Some time after that the defendant told the plaintiff that he thought that the deal had fallen through as he was having trouble getting information from the vendor. This was about six to eight weeks after the plaintiff was told the tender had been accepted, according to the plaintiff. As time went on the plaintiff heard nothing more of the matter and it "fizzled out".
The defendant adds several elements to this story but on these basic facts he is in agreement with the plaintiff.
Subsequent events have been established through the unchallenged testimony of the defendant. The defendant gave evidence that on the 14 th March, 1998, and again on the 16 th March. 1998, he met with a representative of the EBS. The defendant stated in evidence that the situation after these meetings was that funds to purchase the whole property himself would be available to him subject to valuation. In April, the contracts were issued by the vendor to the plaintiff. On the 2 nd June, 1998, the EBS valued the property at £800,000, and a letter from the EBS to the defendant's solicitors dated 11 th June, 1998, made reference to a loan facility approved for the defendant in the sum of £600.000. The defendant gave evidence that the contracts had been signed in mid to late May; however the contact itself bears the date 16 thJune. 1998, the 29 th May having been crossed out. The closing date on the face of the contract was set at the 26 th June. 1998, and the deed of conveyance is dated 6 th July. 1998.
It was around the 28 th June, 1998. after the contracts were signed, but probably just before the sale was closed, that the plaintiff learned that the defendant had proceeded with the purchase. The circumstances surrounding the plaintiff's discovery were outlined by the plaintiff and were accepted by the defendant. The plaintiff and defendant had been in regular contact in a general, social way; they saw each other, as they had for many years, practically on a daily basis. Around the 28 th June, 1998, the plaintiff and defendant went for a drink. They were having a general conversation when the plaintiff brought up the subject of 7/8 Mount Street Crescent.
He told the defendant that it was a shame that that sale had not gone through. He remarked that he felt the market was rising and it was a good time to get involved in some form of commercial property investment; he advised the defendant that that was what he should do. The defendant then "smiled" and said "I have bought something". The plaintiff said that was great, and asked him what it was he had bought. After some cajoling, the defendant confessed that he had bought 7/8 Mount Street Crescent. This came as a complete shock to the plaintiff; he said "that is impossible, you couldn't, because we bought them together". The defendant told him that he had decided to go ahead on his own. The plaintiff told him that as far as he was concerned they had a deal on it. According to the plaintiff, the defendant then "went a bit pale", and did not say much else. The plaintiff told the defendant he would be writing to him the following day, and that if the deal was not formalised he would see him in court. On the 29 th June, 1998, two letters went to the defendant; one from the plaintiff and one from the plaintiff's solicitors, both of which set out events almost exactly as the plaintiff...
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