Dublin Laundry Company Ltd v Clarke

• Jurisdiction: Ireland
• Judge: HONOURABLE MR. JUSTICE DECLAN COSTELLO
• Judgment Date: 01 January 1989
• Neutral Citation: 1987 WJSC-HC 1610
• Date: 01 January 1989
• Court: High Court

1987 WJSC-HC 1610

THE HIGH COURT

No.2653p/1985

DUBLIN LAUNDRY CO LTD (IN LIQ. ) v. CLARKE

BETWEEN

THE DUBLIN LAUNDRY COMPANY LIMITED (In Liquidation)

PLAINTIFF

MALACHY CLARKE

DEFENDANT

Citations:

VISCOUNT SECURITY V KENNEDY UNREP SUPREME 06.05.86 1986/4/1578

REGISTRATION OF TITLE ACT 1964 S23

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 ART 18

LAVAN V WALSH 1964 IR 87

Synopsis:

AGENCY

Creation

Proof - Sale of land - Purchaser - Capacity - The defendant signed a contract for the purchase of certain land from the plaintiff company - The plaintiff and the defendant were the only named parties to the contract but it was also signed by a third party as purchaser - The terms of the contract did not reveal the existence of any agency - The defendant and the third party had been associated for several years in the development of building land - When he signed the contract the defendant intended to develop the land in partnership with the third party through the medium of a company but the identity of the company had not been decided - Held that there had been no principal on whose behalf the defendant could have been acting when he signed the contract - Held that the defendant had failed to prove that he had signed in a representative capacity: ~Lavan v. Walsh~ [1964] IR 87 considered - Extempore judgment - (1985/2653 P - Costello J. - 22/10/87) [1989] ILRM 29

|Dublin Laundry Co. v. Clarke|

SALE OF LAND

Contract

Performance - Completion - Delay - Completion notice - Vendor's notice - Capacity of vendor to serve the notice - Time not made the essence of the contract by its terms - Undischarged obligations of vendor at date of service of notice - At that date the vendor company had not procured the release of the property for sale from a mortgage affecting it and was unable to satisfy the claims of the mortgagee without recourse to the purchase money to be paid by the purchaser, but the liquidator of the vendor company had obtained the agreement of the mortgagee to release the property for sale before obtaining payment in return for the liquidator's undertaking to discharge the mortgagee's claims from (inter alia) the purchase money - At that date the vendor had not acquired a certain right of way over adjacent land belonging to the local authority but the latter, in an interdepartmental letter, had agreed to allow the vendor and its assigns to use the way until access to part of the property for sale could be obtained on completion of an extension to the public road - That letter had been sent to the defendant and he had not objected to his access being provided in that manner - At that date a certain statutory declaration and a certain certificate, supporting the title of the vendor, had not been executed although the forms of the documents had been agreed - Held that, in the circumstances, the absence of a release of the mortgage at the date of the service of the completion notice did not invalidate that notice: ~Viscount Securities v. Kennedy~ (168/85 - S.C. - 6/5/86) distinguished - Held that the vendor's notice had not been invalidated by the other matters on which the defendant relied - Held that the plaintiff company was entitled to specific performance of the contract by the defendant - Extempore judgment - (1985/2653 P - Costello J. - 22/10/87) [1989] ILRM 29

|Dublin Laundry Co. v. Clarke|

1 JUDGMENT DELIVERED BY THE HONOURABLE MR. JUSTICE DECLAN COSTELLO ON 22 OCTOBER 1987

APPEARANCES

For the Plaintiff:

John Farrell, SC

Fergus Flood, SC

Hugh O'Neill, BL

Instructed by

Vincent &Beatty

67-68 Fitzwilliam Square

Dublin 2

For the Defendant:

Thomas McCann, SC

William O'Brien, BL

Instructed by

Smith Foy & Partners

59 Fitzwilliam Square

Dublin 2

2 The contract which has given rise to these proceedings relates to lands at Clonbeg, Milltown, Co. Dublin. These lands are not far off the Dundrum Road from Milltown Bridge and are in the County Council area.

3 The agreement between the parties was for the payment of a purchase price of £5,000. Draft contracts relating to the lands were sent by the Plaintiff Company's solicitors to the Defendant's solicitors on 14 December 1982. Prior to this date, however, the parties had been in negotiation concerning the lands, that is to say Malachy Clarke, the Defendant in these proceedings, and the Plaintiff Company, in the early part of 1982. At that time agreement had virtually been reached but for reasons to be explained later the negotiations fell through.

4 Later in 1982 discussions took place between the auctioneer dealing with the lands and Mr. Malachy Clarke, as a result of which an agreement was reached which was then passed on to the parties" solicitors for formalising.

5 The draft contracts were not returned by the Defendant's solicitors until 11 February 1983 notwithstanding certain reminders in the meantime. On that date, however, the draft contracts were returned with the deposit and requisitions on title. The contracts were then executed by the Plaintiff Company and one of them was returned in the ordinary way to the Defendant's solicitors on 3 March 1983.

6 I should now refer briefly to certain requisitions that were raised. In the requisitions sent by the Defendant's solicitors and replied to on 20 April 1983, requisition 18 referred to judgments against the lands. Requisition 62.4 referred to a problem concerning a certificate under the Family Home Protection Act, and requisition 62.17 referred to a statutory declaration by Mr. Denis R. Peart, Solicitor, concerning the property and its title. These matters were dealt with by the Plaintiff Company's solicitors and a rejoinder was made on 3 May 1983 in which the Defendant's solicitors and a rejoinder was made on 3 May 1983 in which the Defendant's solicitors repeated the point raised in requisition 62.4, stating that they would accept a certificate concerning the Family Home Protection Act. They also raised in requisition 18 the question in relation to judgments on the lands and stated that any judgments affecting the property would have to be discharged prior to closing. In relation to requisition 62.17 they stated that they were considering the matter and would come back at a later date.

7 The Plaintiff Company's solicitors replied to the rejoinders on 2 September 1983 and stated that the judgments would be discharged on an undertaking to do so out of the proceeds of the sale.

8 These requisitions are referred to now because the points that are raised in them arise later in the Defendant's defence to which I will refer in a moment. Before doing so, however, I must refer to another aspect of the conveyance which had given rise to further points of defence, that is to say, the incumbrances on the lands.

9 At the time of the sale the Plaintiff Company owned three parcels of lands: (a) lands at Clonbeg, Milltown: (b) a site at Milltown on which the laundry owned by the Plaintiff Company had stood; (c) a private house in Greystones known as "Beaconsfield".

10 The evidence of Mr. Guilfoyle, the liquidator of the Company, established that when the Company went into liquidation on 13 May 1983 the statement of affairs valued the three properties at £360,000, and it appears that this valuation was not an unreasonable one in the events that have happened.

11 There were two incumbrances on the Company's lands including the Clonbeg lands. Allied Irish Banks had an equitable mortgage on all these three properties. Its total debt at the time of liquidation was £84,000. It also had a debenture over the Company's assets including its lands dated 12 July 1968. There was a second incumbrancer, however, the Revenue. By virtue of a judgment mortgage for £86,523.83p, which was registered early in 1983, and which was valid notwithstanding the liquidation, the Revenue were second incumbrancers on the lands of Clonbeg.

12 I can record what happened as follows: The Milltown, site and the Greystones site have since been sold. The Greystones dwellinghouse was sold in 1984 for £55,000 and the Milltown site was sold later not in January 1985 when the completion notice was served, but later that year, for £110,000.

13 It is clear, therefore, and was clear to the liquidator at the time of the completion notice that the properties owned by the Plaintiff Company were sufficient to discharge the two incumbrances. I am also satisfied from the liquidator's evidence that the two incumbrancers themselves were satisfied that the Plaintiff Company's properties would discharge their incumbrances in the priority to which they were entitled.

14 I must now deal with an aspect of the sale which has given rise to the problems in this case, in particular to the delay which occurred in closing. It was part of the conditions under which planning permission was obtained for the development of the lands that an arrangement would be made with the County Council for the exchange of what I will call the "green" lands, shown on the map annexed to the agreement, for what I will call the "blue" lands. The blue lands were then owned by the County Council but the Council wished to obtain the green lands for the purpose of widening the Dundrum Road. I am quite satisfied that the Plaintiff Company's solicitors were diligent in trying to get the Council to effect this exchange and that the delay which occurred in relation to it was not the fault of the Plaintiff Company's solicitors. Firstly, the Council was not registered, and under the provisions of section 23 of the 1964 Act the Council was required to be registered but registration occurred on 22 April 1983.

15 Thereafter further delay occurred but on 13 December 1983 the Council indicated to the Plaintiff Company's solicitors that the Deed of Exchange had been executed. But it was not, however, yet ready for passing on to the Plaintiff Company's solicitors, and this did not occur until 14 June 1984. On that...