Embourg Ltd v Tyler Group Ltd
| Jurisdiction | Ireland |
| Judge | BLAYNEY J. |
| Judgment Date | 05 March 1996 |
| Neutral Citation | [1996] IESC 5 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 223 of 1995],223/95 |
| Date | 05 March 1996 |
[1996] IESC 5
THE SUPREME COURT
Hamilton C.J.
Blayney J.
Barrington J.
and
Citations:
LAW SOCIETYS GENERAL CONDITIONS OF SALE (1991)
CARLILL V CARBOLIC SMOKEBALL CO 1893 1 QB 256
MULHALL V HORAN 1981 IR 364
ECCLES V BRYANT & POLLOCK 1948 1 CH 93
WYLIE IRISH CONVEYANCING LAW 377
Synopsis:
CONTRACT
Formation
Essentials - Offer - Acceptance - Communication - Sale of land - Specific performance of contract - Purchaser's action - Vendor's acceptance of offer not communicated to purchaser - Parties' agreement that no concluded agreement existed until exchange of contracts - (223/95 - Supreme Court - 5/3/96) [1996] 3 IR 480
|Embourg Ltd. v. Tyler Group Ltd.|
SALE OF LAND
Contract
Specific performance - Purchaser - Entitlement - Offer - Vendor's acceptance of offer not communicated to plaintiff purchaser - No concluded contract - Parties" intention that contract be not formed until exchange of executed contracts - Vendor's executed contract received by his solicitor with instructions not to deliver document to purchaser without further express authority - Action for specific performance dismissed on ground that no concluded contract formed - (223/95 - Supreme Court - 5/3/96)
|Embourg Ltd. v. Tyler Group Ltd.|
JUDGMENT delivered on the BLAYNEY J. by 5th day of March 1996 [nem diss]
This is an appeal by the plaintiffs/appellants (to whom I shall refer as the plaintiffs) against the decision of the President of the High Court dismissing the plaintiffs" claim for specific performance of a contract alleged to have been entered into by the plaintiffs for the purchase of No. 55 Mary Street in the city of Dublin, which is the property of the defendant.
The facts are not in dispute and are as follows. Carmel McLoughlin is a property developer and in September 1994 she was interested in purchasing No. 55 Mary Street. On the 20th September 1994 agreement on price was reached between Hugh Markey of Lisney and Son, acting on behalf of the defendant, and Brendan Herlihy, an accountant acting on behalf of Mrs. McLoughlin. Mr. Markey sent the following letter to Mr. Herlihy referring to the agreement:-
" 20th September 1994"
SUBJECT TO CONTRACT
Re: 55 Mary Street, Dublin 1.
Dear Mr. Herlihy
I refer to our discussions and confirm that I understand that our clients are prepared, subject to contract, to proceed with the sale of the above property on the basis briefly outlined below.
The entire property, No. 55 Mary Street, Dublin I with full vacant possession.
£170,000 payable by a deposit of £5,000 with the balance to be paid on completion of the sale.
Six months from exchange of contracts.
Mrs. Carmel McLoughlin c/o Kevans, solicitors, 34 Fitzwilliam Place, Dublin 2.
For the vendor — Hooper and Company, 97 Upper George's Street, Dun Laoghaire, Co. Dublin.
Kevans, 24 Fitzwilliam Place, Dublin 2 (Mr. Jim Heaney)
I trust that matters will proceed satisfactorily from this stage, but in the interim you will appreciate that neither our negotiations to date, nor this letter, can form part of, nor create, any binding contract between the parties, which must await the formal execution of the appropriate legal documentation by both sides.
Yours sincerely
Hugh Markey"
On the following day Mrs. McLoughlin sent a cheque for the deposit of £5,000 to the defendant's solicitors and this was acknowledged by them in a letter sent to Mrs. McLoughlin c/o her solicitors. The letter from the defendant's solicitors stated:
"Please note that no binding contract is to be deemed to exist until such time as a contract herein has been executed by all parties. We do not have authority to bind our client.
To confirm the booking deposit is accepted subject to contract."
On the 28th September 1994 Mrs. McLoughlin's solicitors sent the following letter to the defendant's solicitors:
"Subject to contract/contract denied Re: Our client: Mrs. Carmel McLoughlin purchaser of 55 Mary Street, Dublin 1
Dear Sirs
We understand that you act for the vendors in this regard. we await contract in duplicate with supporting title documentation.
Please note that we have no authority to enter into a contract on behalf of our client and that no binding contract shall be deemed to exist between the parties until contracts have been executed and exchanged.
Yours faithfully
Kevans, solicitors".
On the 3rd October 1994 the defendant's solicitors sent to the plaintiffs" solicitors two copies of a detailed contract incorporating the Law Society's General Conditions of Sale (1991 edition). The covering letter concluded with the following paragraph:
"Please note that we have no authority to bind our client and no binding contract shall be deemed to exist until such time as the contracts herein in all cases have been executed by all parties and the full deposits accepted by you (sic)."
On the 25th January 1995 the plaintiffs" solicitors returned both parts of the contract which had been signed by Mrs. McLoughlin in trust for Embourg Limited. In their letter they raised six queries in regard to the title. Messrs Hooper and Co. replied on the 1st February 1995. In the first paragraph of their letter they said:
"We thank you for yours of the 25th January 1995 enclosing contracts duly executed by your client and confirm we are arranging to have same executed by our client."
The rest of the letter was concerned with replying to the six title queries raised in the plaintiffs" solicitors letter of the 25th January 1995.
Nothing further happened until the 25th April 1995. On that date Messrs Hooper wrote to Messrs Kevans returning the deposit of £5,000 as the defendant was not proceeding with the sale. Their letter crossed with the following letter from Messrs Kevans:
"Tyler Group Limited to Carmel McLoughlin Premises: 55 Mary Street, Dublin 1.
Dear Sirs
We presume that the contracts have now been duly completed by your clients and have been returned from England. We would be obliged if you would let us have one part of the contract without further delay, in order that we may proceed with our requisitions on title.
Yours faithfully
Kevans, solicitors."
A plenary summons in which Embourg Limited was named as the sole plaintiff was issued on the 27th April 1995 and a statement of claim was delivered on the 14th June 1995. The claim made in the statement of claim was that there was a written agreement between the parties for the sale of No. 55 Mary Street and that the agreement was contained in correspondence between the parties and their respective solicitors and in particular an open letter from the plaintiffs" solicitors to the defendant's solicitors dated the 25th day of January 1995 enclosing a contract duly executed by the plaintiff and the reply of the defendant's solicitors thereto dated the 1st day of February 1995.
In its defence delivered on the 20th June 1995 the defendant in effect denied that any enforceable contract had ever come into existence.
The defendant brought a motion for security for costs which resulted in Mrs. McLoughlin being joined as a plaintiff. The parties then agreed that the case could be heard on affidavit and it came before the President of the High Court on the 3rd July 1995.
Prior to the date of the hearing one of the directors of the defendant, Michael J. Smith, swore an affidavit in which he stated that the defendant had never authorised its solicitors Messrs Hooper and Co., to bind it to any contract for the sale of No. 55 Mary Street without the defendant's written authority and that no authority of any kind had ever been given by the defendant to its solicitors. His affidavit included the following paragraph which was heavily relied upon by the plaintiffs in the course of their submissions.
"4. I say that on the 7th day of February 1995 I, by telephone, instructed Mr. John Hooper of Hooper and Company that I had on the 6th day of February sent to him copies of the formal documentation for a sale to the present plaintiff executed on behalf of the defendant but that he Mr. Hooper was not to send or communicate the same to the plaintiff herein unless or until he had my prior written authority in that regard. No authority of any kind was ever subsequently given to him or anyone in his firm to do so."
The President of the High Court dismissed the plaintiffs" claim in an extempore judgment. The following extract from counsel's note of the judgment, as approved by the President, sets out the grounds of his decision:-
"It is common for solicitors to write "subject to contract/contract denied" on their letters and to state in their letters that they do not have authority to bind their clients until such time as the contracts have been executed. The courts must give effect to these caveats. I must also give effect to the intentions of the parties in this case. There is a certain discrepancy between the letters written by the solicitors for the purchaser and the letters written by the solicitors for the vendor. There has been no contract executed and exchanged. There has however been an execution by the purchaser and there has in turn been an execution by the vendor in the circumstances set out in the affidavits. I do not think that the signature by the director of the defendant was a valid execution as contemplated by the contract. I do not think therefore that any legal obligation arose in this case and find that there was no execution of the contract. It was convenient for...
To continue reading
Request your trial
-
Everyday Finance DAC and Another v Lohan
...as per the case mentioned [referring to a decision of the Supreme Court that she had mentioned earlier, being Embourg Ltd v Tyler Group [1996] IESC 5 an agreement to enter an agreement into the future” and that this was so was also reflected in the affidavit sworn by the appellant himself i......
-
Greenband Investments v Bruton and Others
...IR 292 BOYLE v LEE 1992 1 IR 555 HIGGINS v ARGENT DEVELOPMENTS LTD UNREP SUPREME 13.5.2003 2003/26/6049 EMBOURG LTD v TYLER GROUP LTD 1996 3 IR 480 CONTRACT Sale of land Oral agreement - Whether any concluded oral agreement - Enforceability of contract - Adequacy of note or memorandum - Ess......