Greenwich Project Holdings Ltd v Cronin

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 06 July 2022
• Neutral Citation: [2022] IECA 154
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/73

Between/

Greenwich Project Holdings Limited

Appellant/Plaintiff

and

Con Cronin

Respondent/Defendant

[2022] IECA 154

Whelan J.

Faherty J.

Binchy J.

Appeal Number: 2021/73

COURT OF APPEAL

Re-opening proceedings – Dismissal – Proportionality – Appellant appealing against orders dismissing the proceedings and refusing to re-open same – Whether the order refusing to re-open the proceedings was correctly made

Facts: The appellant, Greenwich Project Holdings Ltd, appealed to the Court of Appeal against orders dismissing the proceedings and refusing to re-open same, perfected on 8 March 2021 by Hyland J in the High Court on foot of two judgments delivered on 20 January 2021 (the Dismissal Judgment) and 3 March 2021 (the Revisit Judgment) respectively in the proceedings. The Court held, relying on the Tracey v McDowell [2016] IESC 44 jurisprudence, that the appellant’s claim be dismissed for want of prosecution for failure to comply with an order made by Jordan J in the High Court on 8 July 2019 (the Directions Order). The trial judge refused an application on the part of the appellant to revisit the Dismissal Judgment of 20 January 2021. The application to revisit the Dismissal Judgment was brought on the basis that certain correspondence not opened to the Court in the course of the hearing of the motion of the respondent, Mr Cronin, ought to have been considered. That material had previously been exhibited to an affidavit sworn on behalf of the appellant in the context of a motion which the respondent had issued on 7 September 2018 seeking to vacate a lis pendens registered by the appellant against the subject property in September 2014. The disposal of that motion by the High Court had resulted in the lis pendens being vacated. Hyland J refused the application to reopen the proceedings and further ordered the appellant to pay costs. The appellant appealed the entire decision and sought to set aside the orders of the High Court.

Held by Whelan J that no motion to strike out the specific performance proceedings on any basis was before the judge; nevertheless, by unduly taking into account the existence of the proceedings and entering into a conjecture that envisaged the continuance of the said proceedings and indeed the possibility that the same would remain extant and would result in the litigation before her being “substantially recast” resulted in the trial judge falling into error in the proportionality exercise. Whelan J held that the order made in all the circumstances was not proportionate and failed to balance the rights and interests of the parties as the Tracey v McDowell jurisprudence requires; further though the delays of the appellant were both inordinate and inexcusable the balance of justice favoured allowing the proceedings to continue to trial where the case was arguable and this was primarily a documents case. In Whelan J’s view, the appeal should be allowed insofar as the order dismissing the appellant’s claim for want of prosecution for failure to comply with the Directions Order was concerned only; the order refusing to re-open the proceedings was correctly made and should not be disturbed.

Whelan J held that the appellant had failed to establish that the decision of the trial judge erred in her refusal to re-open the proceedings; in that regard the respondent was entitled to his costs in the High Court and in the Court of Appeal in relation to the appellant’s application to re-open the proceedings which culminated in the judgment of Hyland J dated 3 March 2021, payment of the said costs to be stayed pending the conclusion of the proceedings. Whelan J held that the appellant was not entitled to its costs in respect of the aspects of the appeal wherein it had succeeded. Whelan J was satisfied that the appropriate order, both in the High Court and the Court of Appeal, was that there be no order as to costs (save as provided above in relation to the Revisit Judgment) in circumstances where the appellant pursued a whole variety of grounds which were clearly not maintainable and had succeeded on a limited basis principally in regard to the issue of proportionality. Whelan J held that each side should bear their own costs in the Court of Appeal in respect of the Dismissal Motion and also in respect of the High Court hearing of same.

Appeal allowed in part.

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 6 ^th day of July 2022

Introduction

1 . This is an appeal by Greenwich Project Holdings Limited (“Greenwich”) against orders dismissing the proceedings and refusing to re-open same, perfected on 8 March 2021 by Hyland J. in the High Court on foot of two judgments delivered on 20 January 2021 (the “Dismissal Judgment”) and 3 March 2021 (the “Revisit Judgment”) respectively in the above entitled proceedings. The Court held, relying on the Tracey v. McDowell [2016] IESC 44 jurisprudence, that the appellant's claim be dismissed for want of prosecution for failure to comply with an order made by Mr. Justice Jordan in the High Court on 8 July 2019 (the “Directions Order”). The trial judge refused an application on the part of the appellant to revisit the Dismissal Judgment of 20 January 2021. The application to revisit the Dismissal Judgment was brought on the basis that certain correspondence not been opened to the Court in the course of the hearing of the respondent's motion ought to have been considered. That material had previously been exhibited to an affidavit sworn on behalf of the appellant in the context of a Motion which the respondent had issued on 7 September 2018 seeking to vacate a lis pendens registered by the appellant against the subject property in September 2014. The disposal of that motion by the High Court had resulted in the lis pendens being vacated. Hyland J. refused the application to reopen the proceedings and further ordered the appellant to pay costs.

2 . The appellant (hereinafter “Greenwich”) appeals the entire decision and seeks to set aside the orders of the High Court.

Background and Context

3 . The respondent (“the Statutory Receiver”) was appointed on 24 September 2012 as the Statutory Receiver of one Anthony Boushel. He was appointed by National Asset Management Agency (“NAMA”) in the context of the discharge of its statutory functions in the resolution of the entity then known as Anglo Irish Bank Corporation Limited. NAMA, which had appointed the Statutory Receiver, was the statutory “bad bank” which had acquired the debts of participating insolvent banking institutions participating under the terms of the 2009 National Assets Management Act, as amended.

4 . In the course of the said Statutory Receivership, certain hereditaments and premises situated at Greenwich Court, Rathmines, Dublin 6 (“the property”) were offered for sale by public auction. The property was purchased in trust for Greenwich at auction on 7 May 2014. The purchase price was €1,025,000 and a deposit of €102,500 was paid on the said date. Significantly, in the overall context of this application and the issue of delay, the closing date was identified on the face of the contract as “three weeks from the date hereof”. Special Condition 11(l) provided that General Condition 36 did not to apply to the sale and “is hereby deleted”. The said General Condition contained certain warranties on the part of the vendor in the context of development and planning. Special Condition 5 became a point of contention between the parties subsequent to the entering into the contract for sale. It appears to fall into two sub-sections. 5.1 pertained to steps to be taking by the vendor post-execution of the contract but prior to its conclusion: “[o]n or prior to the Completion Date the Vendor shall procure that the opening in the gable wall of No. 4 Greenwich Court at first floor level, adjoining the Subject Property shall be closed up so that there shall not be any access from No. 4 Greenwich Court onto any part of the Subject Property”. Special Condition 5.2 pertained to certain matters and works to be carried out “[w]ithin 4 weeks of the Completion Date (or such other date as may be agreed between the Vendor and the Purchaser)” in respect of the gable wall adjoining the property and is directed to the post-completion period of time.

5 . Subsequent to the execution of the contract particularly in the months of June and early July 2014, there was ongoing correspondence between the parties with particular reference to Special Condition 5. No agreement was reached between the parties as to how concerns raised by the appellant might be addressed or indeed whether there was any obligation on the part of the Statutory Receiver to address them in the manner contended for by the appellant in the first place.

6 . On 17 July 2014, approximately two months following execution of the contract, the Statutory Receiver caused a Notice of Intention to Rescind to be served on the appellant. On 30 July 2014, a further Notice of Rescission invoking General Condition 18 of the contract for sale was also served. It is significant that neither party ever served a Completion Notice on the other. If the Notice of Rescission were valid, the contract was potentially at an end and the Statutory Receiver was once more free to place the property on the market and secure a buyer.

7 . On 1 September 2014, Greenwich issued a Plenary Summons against the Statutory Receiver. The writ by its General Endorsement of Claim pleads the contract and at paras. 5, 6, 7 and 8 places particular reliance on Special Condition 5.1. The Notice of Rescission is not pleaded nor is its validity or otherwise put in issue. The primary claim in the writ is that the Statutory Receiver/vendor had not discharged his obligations under Special Condition 5.1 and had not obtained and/or secured confirmation “from the relevant authorities that any or all works were completed legally and...