Greenband Investments v Bruton and Others

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date30 January 2009
Neutral Citation[2009] IEHC 67
Docket Number[No. 3677 P/2008]
CourtHigh Court
Date30 January 2009

[2009] IEHC 67

THE HIGH COURT

[No. 3677 P/2008]
Greenband Investments v Bruton & Ors

BETWEEN

GREENBAND INVESTMENTS
PLAINTIFF

AND

MATTHEW BRUTON, DENNIS WALSH AND PATRICK HOLOHAN
DEFENDANTS

MULHALL v HAREN 1981 IR 364

TIVERTON LTD v WEARWELL LTD 1975 CH 146

GREYHOUND INDUSTRY ACT 1958 S26(2)

GREYHOUND INDUSTRY ACT 1958 S26(1)

FEENEY & SHANNON v MCMANUS 1937 IR 23

TRUSTEES ACT 1893 (UK)

LAW & ANOR v ROBERT ROBERTS & CO 1964 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 - Essential terms of contract - Statute of Frauds Absence of reference to deposit - Part performance - Estoppel - Agency - Authority - Actual authority - Ostensible authority - Whether defendant estopped from denying authority of agent to enter into agreement - Whether appropriate to direct specific performance of agreement - Whether exchange of written documentation between parties could give rise to a binding contract in absence of concluded oral agreement - Embourg Ltd v Tyler Group Ltd [1996] 3 IR 480, Higgins v Argent Developments Ltd (Unrep, SC, 13/5/2003) and Feeney and Shannon v McManus [1937] IR 23 applied; Mulhall v Haran [1981] IR 364, Tiverton Ltd v Wearwell Ltd [1975] Ch 146 and Boyle v Lee [1992] I IR 555 distinguished - Decree of specific performance granted (2008/3677P - Clarke J - 30/1/2009) [2009] IEHC 67

Greenbrand Investments v Bruton

Mr. Justice Clarke
2

1.1 The plaintiff ("Greenband") is an unlimited company engaged in property development. The defendants ("the Trustees") are sued in their capacity as trustees of the Irish Coursing Club ("ICC"). The ICC owns property at Davis Road in Clonmel which is immediately adjacent to (on the East side) a substantial commercial development being conducted by Greenband at a site known as the Showgrounds.

3

1.2 There is little doubt but that active negotiations took place between Greenband and persons claiming to represent the ICC concerning the possibility of a sale of a narrow strip of land which is situated towards the boundary between the two properties. The strip in question was owned by the ICC and was used as a roadway to access, not only the property of the ICC but also other properties.

4

1.3 Disputes have arisen between the parties as to whether there is an enforceable agreement for the sale of the property in question. I will turn shortly to a brief description of the progress of the proceedings to date. For reasons which will be apparent, the only issue which was ultimately tried, at this stage, was as to whether there was an enforceable agreement between the parties and, if so, whether it was appropriate to direct specific performance of that agreement. Other issues were left over, if arising in the light of the decision on that question, to a further hearing. In that context it is appropriate to turn first to the procedural history of the case.

2

2.1 The proceedings were commenced in the usual way and, having been admitted in to the Commercial Court, came on for hearing in early course. In the immediate run up to the trial date a number of developments occurred. Firstly, Greenband sought to amend its statement of claim by placing reliance on an alleged oral agreement rather than the written agreement which was pleaded in the original statement of claim.

3

2.2 Likewise it became apparent to the parties that it was unlikely that Greenband's additional claim for damages would be capable of being dealt with within the time which had been allotted for the hearing. On that basis it was agreed between the parties, and accepted by the court, that issues as to damages would be left over (in the event that they should arise) for another hearing.

4

2.3 At the commencement of the hearing it appeared that there were two possible bases upon which a claim for damages might arise. It is well settled that, to an extent, specific performance is a discretionary remedy and there are circumstances in which it may not be appropriate for a court to order specific performance of a contract, even though there is a valid, binding and enforceable contract in existence. One possibility was, therefore, that Greenband might establish an enforceable contract but might fail to persuade the court that it was appropriate to order specific performance. On that basis damages in lieu of specific performance would need to have been considered. Obviously for such an issue to arise it would have been necessary that Greenband satisfied the court that there was an enforceable contract, but failed to persuade the court that specific performance should be ordered.

5

2.4 However, by the close of the proceedings counsel on behalf of the ICC accepted that there was no legitimate basis, on the evidence that had emerged, on which he could urge on the court that it would be inappropriate to order specific performance in the event that the court were to find that there was an enforceable contract between the parties. The ICC continued, of course, to strenuously resist the contention put forward on behalf of Greenband that there was such a contract. However, it was accepted that if, contrary to that position, the court was persuaded that there was an enforceable contract in place, there was no legitimate basis for the court declining to order specific performance. The possibility of damages in lieu of specific performance is, therefore, no longer relevant.

6

2.5 The second basis on which damages could arise in a case such as this stems from the claim made by Greenband to the effect that it is entitled to damages even if it obtains specific performance. The basis for that claim stems from a contention that, in the light of the refusal by the ICC to complete what Greenband contends is an enforceable contract, in a timely fashion, Greenband has suffered significant loss by having to make alternative arrangements which, it is said, it was required to do in order to minimise or mitigate its potential loss arising out of what it says is the ICC's breach of contract.

7

2.6 In the events that have happened, therefore, the only issue which I have to decide at this stage is as to whether Greenband is entitled to a decree of specific performance. If Greenband is so entitled then it follows that it will be necessary to have a further hearing to determine whether, and if so to what extent, Greenband may also be entitled to damages arising out of the matters referred to in the preceding paragraph. It equally clearly follows that in the event that Greenband fail to obtain a decree of specific performance, same can now only be because the court was not satisfied that there was an enforceable contract and any question of damages would not, in those circumstances arise.

8

2.7 This judgment is directed, therefore, solely to the question of whether there is an enforceable contract between the parties, so as to entitle Greenband to a decree of specific performance. I now turn to the uncontroversial facts in the case.

2

3.1 It is perhaps appropriate to start by a brief description of a number of portions of land which are to be found off Davis Road in Clonmel. The relevant lands are situated between Davis Road and the River Suir. At the Davis Road frontage as one looks inwards onto the lands and towards the River Suir, there is towards the left the headquarters of the ICC and towards the right, the Showground premises on which Greenband is currently involved in a significant commercial retail development. Between the two is a roadway, part of which is the subject of these proceedings.

3

3.2 A number of other plots of land are also of some relevance to the history of events. Immediately behind the Showground premises lies Clonmel Greyhound racetrack which is, as I understand it, also owned by the ICC. Greenband had expressed an interest in acquiring those premises though nothing, in particular, turns on that fact or those premises in these proceedings. Immediately behind the premises owned by the ICC (and indeed stretching behind other premises to the left of the ICC premises which also front onto Davis Road), is a significant plot of ground known as the Galloping Field. The Galloping Field was acquired by Greenband some time ago. Access to the Galloping Field is across the roadway, part of which is the subject of the dispute in these proceedings. However, it is of some importance to note that the roadway in question runs the full length of the side of the ICC premises. Towards the rear of the ICC premises there is an entry into a premises occupied by the "Sporting Press" which is associated with the ICC. In the past the ICC sold the rear portion of the roadway in question (that is to say the portion beyond the entry into the Sporting Press premises) to the predecessor in title of Greenband to the Galloping Field. Therefore, when acquiring the Galloping Field, Greenband acquired the rear portion of the roadway in question. This much is not in dispute. Nor is it in dispute that Greenband has a right of way over the front portion of the roadway in question for the benefit of the Galloping Field as the dominant tenement.

4

3.3 These latter facts are relevant for two reasons. Firstly, it is clear that, prior to the occurrence of the events which give rise to these proceedings, the situation was that the roadway which is alleged to be the subject of the agreement to sell, was already the subject of a significant right of way in favour of Greenband in its capacity as owner of the Galloping Field. Likewise the only land which remained in the ownership of the ICC was what one might call the front portion of the roadway in question. These proceedings...

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6 cases
  • Keena v Coughlan
    • Ireland
    • High Court
    • January 18, 2019
    ...expressly contemplate that the oral agreement will later be formalised into a written contract. In Greenband Investments v. Bruton & Ors [2009] IEHC 67, Clarke J. said the following:– ‘…parties may also enter into oral discussions which cannot be properly characterised as involving either ......
  • O'Connell v The Turf Club
    • Ireland
    • Supreme Court
    • June 25, 2015
    ...body, Bord na gCon, but also addressed the position of the Irish Coursing Club which was a body in existence at that time. In Greenband Investments v. Bruton & Ors [2009] IEHC 67, it was necessary to address and analyse the nature of the Irish Coursing Club in the aftermath of the 1958 Act.......
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    • Court of Appeal (Ireland)
    • October 13, 2023
    ...of the law the trial judge attached weight to the decision of Clarke J. (as he then was) in Greenband Investments v. Bruton & Ors [2009] IEHC 67, noting his observation (at 5.4) that: “…parties may also enter into oral discussions which cannot be properly characterised as involving either a......
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    • April 3, 2014
    ...CONSTITUTION ART 37 IRISH HORSERACING INDUSTRY ACT 1994 PART III GREENBAND INVESTMENTS v BRUTON & ORS UNREP CLARKE 30.1.2009 2009/24/5829 2009 IEHC 67 BOLGER v OSBORNE & ORS 2000 1 ILRM 250 2000/1/288 MURPHY v TURF CLUB 1989 IR 171 1989/7/2030 IRISH HORSERACING INDUSTRY ACT 1994 S45(2) IRI......
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