O Dwyer & Anor v Boyd & Anor, [2006] IEHC 157 (2006)

Docket Number:2005 317P
Judge:Finnegan, P.
 
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Neutral Citation Number: [2006] IEHC 157

THE HIGH COURT

2005 NO. 317P

BETWEEN

DECLAN O'DWYER

AND

JULIA JONES - O'DWYER

PLAINTIFFS

AND

ROBIN BOYD AND ANDREW DILLON

DEFENDANTS

Judgment of Finnegan P. delivered on the 17th day of May 2006.

The Plaintiffs are personal litigants. The Statement of Claim runs to some 45 paragraphs and 25 pages. Many issues are raised not all of which are justiciable and the first task to be undertaken is to identify those issues which are properly before the Court for resolution.

By an Agreement for Sale in writing dated the 21st August 1998 in the Law Society of Ireland standard form 1995 Edition the first named Defendant agreed to sell and the Plaintiffs agreed to purchase premises known as Killuragh Glen near Mallow, Co. Cork on some 27 acres at a purchase price of IR£300,500. The map attached to the conveyance of the premises to the first named Defendant contained an error in that it included in the lands conveyed a large slurry tank and a small portion of ground which error was repeated in the Agreement for Sale. The Plaintiffs issued proceedings in the High Court against the first named Defendant Record No. 1999 No. 1144P seeking inter alia specific performance of the Agreement for Sale with abatement of the purchase price on account of the error in the Agreement for Sale and some other matters. Those proceedings were stayed pursuant to the provisions of general conditions 21, 33 and 51 of the Agreement for Sale the issue of an abatement of the purchase price being referred to arbitration.

The Arbitration

As many of the issues raised by the Plaintiffs in this action overlap with those in the arbitration it is necessary to detail the outcome of the arbitration in terms of the award, claims in respect of which no award was made and claims not within the reference. Details of the claims in respect of which an award was made and in respect of which no award was made and claims not within the reference are as follows -

(i) Award

Slurry tank 18,000

Land on which slurry tank situated 250

Small portion of land 150

Glasshouse 2,500

Shed 1,100

Damage to flat roof and chimney cowl in

main house and repair of blocked pipes and

Gutters and recent holes in slate roof 2,000

Re-painting and re-decoration of interior 20,000

Miscellaneous items

Television aerial

Two large trees

Clean up of marble fireplaces

Repairs to doors and walls

Missing wc cistern top

Repairs to four broken windows

Alarm and security lights

Replacement of locks

Gate locks

Internal fittings mirrors etc

Reinstatement of landscaping and driveway 9,010

_____

Total award: 53,010

(ii) Claims in respect of which no award was made

Drainpipe

Carpets and curtains

Removal of asbestos

Separation of water and electrical services and investigation

Treatment of weeds and driveway

Creeper

(iii) Claims held not to be within the reference

Loss of rent

Stress

With regard to costs the award provided that the arbitrator's fees together with VAT should be paid equally by the Claimant and the Respondents. No award was made in respect of costs.

Following on this the action Record No. 1999 No. 1144P was reactivated and on the 11th August 2004 the same was compromised. At that time an issue had arisen which becomes relevant to the matters which concern me in the present proceedings. Notwithstanding that the Plaintiffs were compensated in relation to the slurry tank and the small portion of land they were insisting that the same should be conveyed to them by the first named Defendant and that he should convey the same as beneficial owner. On advice the first named Defendant was unwilling to execute a conveyance in that form. In the course of the hearing before Mr. Justice Kelly on that date Counsel on behalf of the first named Defendant agreed that the conveyance should be in the form sought by the Plaintiffs

The Plaintiff's Claim

(i) Against the second named Defendant

The second named Defendant is a solicitor and held and acted under Power of Attorney from the first named Defendant. The Plaintiffs seek to have the second named Defendant made liable for the defaults of the first named Defendant. An Attorney is an agent appointed by deed and subject to that is in the same position as any other agent. The general principle is that the contract of an agent is the contract of the principle and prima facie the Agent is not liable on the agreement: Montgomerie v UK Mutual SS Assurance Limited (1891) 1QB 370. Nothing has been urged upon me to take the second named Defendant outside this general principle. The Plaintiffs however take exception to a number of letters written and verbal communications made by the second named Defendant. In relation to the former they claim that a letter dated 7th March 2005 with enclosures is defamatory. The second named defendant objects that the claim for defamation is not correctly pleaded. I am satisfied that this is so. I am in any event satisfied that nothing in the letter or the enclosures is capable of bearing a defamatory meaning. This claim fails. In paragraph 29 of the Statement of Claim the Plaintiffs plead that the Defendants falsely and maliciously asserted to third parties including the Gardai that the first named Defendant was entitled to the property. At the relevant times the first named Defendant remained the legal owner of the property. This claim also fails. Finally when the premises the subject of the agreement for sale were the subject matter of a robbery in January 2005 the Plaintiffs took possession of pieces of marble fireplaces which had been damaged and notified the Defendants that they were safeguarding the same and claiming a lien over them. The second named Defendant it is alleged misdescribed these valuable pieces in the first named Defendants insurance claim and that this is defamatory of the Plaintiffs. Further the second named Defendant wrote to the Gardai at Fermoy on the 16th February 2005 a letter which the Plaintiffs claim to be defamatory of them. The relevant passage in the letter would appear to be the following -

"Secondly, we wish to report the fact that people called Declan and Julie O'Dwyer, who have long ago contracted to purchase this house called for an inspection of the damage in early January. To our dismay Mr & Mrs O'Dwyer without our permission or authority have taken a large number of pieces of marble which formed parts of the damaged fireplaces, and which were lying around the ground inside the house. They also relieved Mrs Canavin, the housekeeper, of a particularly...

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