Dublin Port Company v Automation Transport Ltd

JurisdictionIreland
JudgeMr. Justice Denis McDonald
Judgment Date10 July 2019
Neutral Citation[2019] IEHC 499
Date10 July 2019
CourtHigh Court
Docket Number[2018 No. 2349 P] [2018 No. 9972 P]

[2019] IEHC 499

THE HIGH COURT

COMMERCIAL

McDonald J.

[2018 No. 2349 P]

[2018 No. 9972 P]

BETWEEN
DUBLIN PORT COMPANY
PLAINTIFF
AND
AUTOMATION TRANSPORT LIMITED
DEFENDANT

Possession – Damages – Breach of covenant – Plaintiff seeking possession of premises occupied by the defendant pursuant to a lease – Whether the plaintiff was entitled to damages for breach of covenant

Facts: The plaintiff, Dublin Port Company, sought possession of business premises on Promenade Road, Dublin 1 occupied by the defendant, Automation Transport Ltd, pursuant to a lease dated 11th February, 2013. The proceedings seeking possession of the Promenade Road premises were commenced by plenary summons issued in March 2018 in which the plaintiff also sought damages for alleged breach of certain repairing covenants.

Held by the High Court (McDonald J) that the plaintiff was entitled to recover possession of the Promenade Road premises from the defendant. This followed from McDonald J’s finding that the defendant had executed a valid renunciation of any right it might otherwise have under the Landlord and Tenant (Amendment) Act 1980 to a new tenancy. McDonald J held that, in circumstances where the defendant was not contesting the exercise of the break clause in the lease, the lease had come to an end and the defendant, in the absence of a right to a new tenancy, must deliver up possession of the premises to the defendant. McDonald J held that he would hear submissions from the parties as to an appropriate timeframe for that purpose. In view of the findings McDonald J had made with regard to the concrete hardstanding and the corrugated iron sheds, he held that he would dismiss the plaintiff’s claim for damages for breach of covenant in respect of those items. Pending the holding of discussions between the parties’ surveyors, McDonald J held that he would defer making any further order in relation to the remaining elements of the plaintiff’s claim for damages for alleged breaches of the repairing covenant. McDonald J held that he would also dismiss the plaintiff’s claim in so far as it alleged that the defendant was carrying out any form of processing or manufacture of plastics on the premises. With regard to the remaining breaches of covenant alleged, McDonald J held that he would make no order but would, as requested by counsel for the plaintiff, give liberty to apply in relation to the fuel covenant.

McDonald J held that he would also hear the parties in due course in relation to costs.

Possession granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 9 July, 2019
1

In these proceedings, the plaintiff seeks possession of business premises on Promenade Road, Dublin 1 occupied by the defendant pursuant to a lease dated 11th February, 2013. The proceedings seeking possession of the Promenade Road premises were commenced by plenary summons (record no. 2018 No. 2349p) issued in March 2018 in which the plaintiff also seeks damages for alleged breach of certain repairing covenants (described in more detail below).

2

In addition to the proceedings commenced in March 2018, there is also a second set of proceedings before the court between the same parties. This second set of proceedings (record no. 2018 No. 9972 P) were commenced in November 2018. In these proceedings, the plaintiff alleged that, following an inspection of the Promenade Road premises in November 2018, it was discovered that the defendant had been engaged, contrary to the terms of the lease, in the processing or production of plastics in the premises. A number of different provisions of the lease were relied on in support of the claim made in these proceedings. While a series of allegations were made, I believe that it is fair to say that the principal complaint made in the proceedings related to the alleged processing of plastics which the plaintiff maintained was contrary to a covenant in the lease that the defendant should not use the premises for anything other than the permitted user - namely the operation of a road haulage business. Reliance was also placed on a covenant in the lease that the defendant would not contravene any applicable laws, regulations or requirements relating to environmental or pollution control. Immediately after the commencement of this second set of proceedings, the plaintiff brought a notice of motion seeking an interlocutory injunction against the defendant restraining the alleged unlawful use of the premises. Ultimately, that application was not pursued to a hearing. Instead, it was agreed that the proceedings would be heard alongside the possession proceedings described in para. 1 above. On the basis of the evidence heard by me during the course of the trial, it appears that the proceedings launched in November 2018 were based on a mistaken understanding of the activities carried on by the defendant on the Promenade Road premises. For convenience, I will refer to the proceedings commenced in November 2018 as ‘ the injunction proceedings’. I will refer to the proceedings described in para. 1 as ‘ the possession proceedings’.

Background
3

The plaintiff is a significant landlord in Dublin Port. Against a background where there are limitations on the ability of the plaintiff to reclaim land from the sea, the plaintiff has sought to prioritise the use of lands at the port for what it considers to be core port uses. According to the plaintiff, core users include the roll-on roll-off and load-on load-off operators. The plaintiff considers hauliers, warehouse operators and storage facilities to be non-core users and it has sought to encourage those users to move to a new site of approximately 40 hectares in the vicinity of Dublin Airport which it has named the ‘ Dublin Inland Port’.

4

The defendant has operated its road haulage business from various premises within the port for a significant number of years. It currently employs nineteen people, eighteen of whom are full time employees and one is employed part time. The defendant has twelve truck tractor units and 40 trailers all of which are purpose built for bulk loads. There are also two fork lifts and one lift truck. The principal activity of the defendant consists of transporting intermodal bulk material from the port to customers. The containers are collected dockside at the port and thereafter transported to the haulage yard currently on the Promenade Road premises. Deliveries are made as and when customers require the material. Mr. Simon Crosbie (who gave evidence on behalf of the defendant) explained that the principal customers of the plaintiff are those involved in continuous process industry and he emphasised that the defendant had to be in a position to supply material as and when they were required for use in the industrial process in question.

5

Prior to the execution of the lease of the Promenade Road premises, the defendant had been in occupation of part of a site on Tolka Quay Road which is also within the port. The Tolka Quay Road premises (along with premises on the same road known as the Tolka Quay Road extension premises and also a premises on Bond Road known as the State warehouse) were the subject of negotiations between the plaintiff and Mr. Henry A. Crosbie (‘ Mr. Crosbie Snr.’) (the father of Mr. Simon Crosbie) and two companies controlled by him namely Henry A. Crosbie (Containers) Ltd and Storecon Ltd. The plaintiff wished to acquire these premises which were held under leases by Mr. Crosbie Snr. and his company. At this time, Mr. Crosbie Snr. was, as part of his arrangements with the National Asset Management Agency (‘ NAMA’), involved in the disposal of his interests in a number of different properties.

6

Following negotiations involving Mr. Crosbie Snr., NAMA and the plaintiff, an agreement was entered into on 17th September, 2012 under which Mr. Crosbie Snr. and the two companies named above agreed to sell to the plaintiff the three premises described in para. 5 above for €5 million. Although Mr. Crosbie Snr. was disposing of his interest in the properties, it appears that he was concerned to ensure that the business of the defendant company run by his son, Mr. Simon Crosbie, would continue to have the ability to service its customers from premises within the port. There was some dispute at the hearing as to whether the concern for the business of the defendant was prompted by Mr. Crosbie Snr. or by NAMA. According to Mr. Simon Crosbie, it was prompted by a concern on the part of NAMA to maintain employment. However, it appears to be clear from the contemporaneous correspondence that representations were in fact made to NAMA by an associate of Mr. Crosbie Snr. (namely Mr. Auke Van Der Werff) to allow the business of the defendant to continue. In those circumstances, it was agreed in the contract for sale of the three premises to the plaintiff that arrangements would be made to allow the defendant to remain on the Tolka Quay Road premises then occupied by it under licence until new premises – namely the Promenade Road premises – would become available. The agreement envisaged that the defendant would be given a three month licence to continue to occupy the Tolka Quay Road premises while the Promenade Road premises were refurbished at a cost of €100,000 (which was to be paid by the plaintiff). The plaintiff also agreed that, upon the expiration of the three month licence and the vacation of the Tolka Quay Road premises by the defendant, it would grant to the defendant a lease of a new site in a form which had been negotiated and agreed at the time the contract was entered into. Clause 4.35 of the draft lease contained a covenant on the part of the defendant in the following terms:-

‘The Tenant shall execute a Deed of Renunciation waiving any renewal rights past, present or future, previously acquired or which may be acquired in accordance with s. 47 of the Civil Law (Miscellaneous Provisions) Act,...

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2 cases
  • K.W. Investment Funds ICAV v Lorgan Leisure Ltd
    • Ireland
    • High Court
    • 12 March 2020
    ...judgment which is potentially relevant to the question of jurisdiction is my own decision in Dublin Port Co. v. Automation Transport Ltd [2019] IEHC 499. In that case, after a full plenary hearing, I held in favour of the plaintiff's claim for possession of property notwithstanding that the......
  • Dublin Port Company v Automation Transport Ltd
    • Ireland
    • Supreme Court
    • 20 December 2019
    ...in the High Court on 26 July 2019, following his judgment delivered on 9 July 2019 ( Dublin Port Company v. Automation Transport Limited [2019] IEHC 499). The High Court had placed a stay on its order whereby Automation Transport had been required to deliver up possession of a premises at P......

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