Guardian Builders Ltd v Kelly

• Jurisdiction: Ireland
• Judge: Mr Justice Costello
• Judgment Date: 31 March 1981
• Neutral Citation: 1981 WJSC-HC 1674
• Date: 31 March 1981
• Court: High Court

1981 WJSC-HC 1674

THE HIGH COURT

5842P/1978

GUARDIAN BUILDERS v. KELLY AND PARK AVENUE

GUARDIAN BUILDERS LIMITED

v

PATRICK KELLY AND PARK AVENUE LIMITED

1 Delivered by Mr Justice Costello on Tuesday, 31 March 1981

2 The resolution of the dispute in this case depends partly on my determination of questions of fact and partly on the legal consequences of the facts which I find.

3 A meeting that is crucial to this matter took place on 25 April 197ú in the Burlington Hotel. Before this meeting, however, the Plaintiff, Mr Molloy, had taken steps to acquaint himself with the planning permissions that were in existence in relation to the site and also had informal discussions with the planning officer in the Planning Department of Dublin Corporation.

4 Mr Molloy worked near the site at the time and had reason to be aware of the title to the site which was on otter. He knew it was a good one and that the Irish Permanent Building Society had lent money on it. Therefore, when he went to the meeting on 25 April the Plaintiff was anxious to do a deal and he was meeting Mr Kelly, the Defendant, who was equally anxious to do a deal. Mr Kelly had a large site which Was causing him some problems and he was anxious to sell it or part of it.

5 Prior to the meeting on 25 April the Defendant had been in touch with Mr. Brian O'Brien of Dillon & Associates Ltd., and I am quite satisfied that Mr O'Brie's firm had been appointed agent on behalf of the Defendant's firm to obtain a purchaser.

6 Mr Brian 'Brien of Dillon & Associates Ltd. had been in touch with the Plaintiff before the meeting of 25 April and set up the meeting and the three men met at about 10.45 a.m. on 25 April at the Hotel. I am quite satisfied that the parties reached a concluded agreement at that meeting; indeed, Mr Kelly has not tried to suggest in any way that the agreement was not a concluded one. They were businessmen and they knew their business well. They were property developers and they concluded an agreement.

7 I should say something briefly about the findings of fact which I make in relation to the meeting on 25 April. I am quite satisfied that Mr O'Brien had obtained a map of the site from Mr Kelly which he brought with him to the meeting and I am satisfied that the parties agreed that the site to be sold was that which was marked on the map in biro by Mr Kelly, the biro having been lent to him by Mr O'Brien. Mr Kelly marked in biro on the map the centre of the road and I do not accept that this was merely put in to assist in some way the Plaintiff in relation to a planning application. I am satisfied that this was the area to be sold.

8 So when it comes to a finding of fact as to what was agreed, I find that the parties agreed that the area to be sold was the area up to the middle of the roadway shown on the site map and marked in biro on the map by Mr Kelly, the Defendant.

9 The parties also agreed that the Plaintiff mould obtain possession of the site within three months. This is, of course, a crucial part of the case. The Defendant had had very considerable difficulties with Mrs Jameson in relation to her site, and I need not rehearse the evidence in relation to that. What is clear is that Mr Kelly was satisfied when he met the Plaintiff that his problems about the Jameson site would be solved. The Defendant had built up what he said was a good relationship with Mrs Jameson. He had given her son holiday work and ha bought a home for her or had arranged for one to be bought for her. I think that the Defendant thought that he had solved that problem; in fact, he had, as the evidence establishes that Mrs Jameson left not long afterwards.

10 Be that as it may, I am quite satisfied that on 25 April there was no question of Mr Kelly raising any doubts about the Jameson site. There was no question of any reference being made to what was to happen if Mrs Jameson did not deliver vacant possession because of Mr Kelly's confidence that he could obtain vacant possession.

11 There was discussion that the Defendant might give possession of portion of the site other than the Jameson site within four to six weeks but this was part of the normal discussions in relation to a site of kind and I do not think it was anything other than a part of the discussions. It was not a material term of the agreement between the parties. What was material was that within three months vacant possession of the entire site would be made available to the Plaintiff.

12 There was no reference at all to questions of title at this meeting There was no reference to a mortgage on the property because the Plaintiff had already satisfied himself that the title was in order and the Defendant was equally satisfied in this connection. I also find that there was no reference, other than a casual reference, to the question of open space on the site. However, a problem could arise in relation to this and it was referred to later in correspondence by Mr Kirwan, Solicitor for the Defendant. A problem would arise if development occurred which affected the area of open space in respect of which planning permission had already been given.

13 There may have been some reference to the number of flats which the Plaintiff would be able to build on the site, but I am quite satisfied that the parties did not make it a term of their contract that the Plaintiff would ensure that the open spaces on the Defendant's portion of the site would be unaffected by any development they undertook.

14 There is one other aspect of this meeting to which I should refer because it is important, that is, the question of the authority of Mr O'Brien to write the letter which. It is this at the end of the meeting Mr O'Brien stated that he was going to write a letter to Mr Kirwan to ask him to prepare a contract. That is his evidence and I accept It. The parties had concluded an agreement; they shook hands, and Mr O'Brien went back to his office and proceeded to write a letter which he gave to his secretary to type. It was typed the next day and was dated 26 April 1978. I will turn to this letter later because a question arises as to whether or not it is a sufficient memorandum to satisfy the Statute of Frauds.

15 Mr Kelly also went to Mr Kirwan that afternoon and told him what had happened earlier that morning and Mr Kirwan then prepared a contract on 26 April, the following day. Mr Kirwan sent this contract by letter to Mr Owens, the Plaintiff's Solicitor.

16 I agree with the view of Mr McCracken in his closing submissions. I think that Mr Kirwan saw the danger of what had happened at the hotel meeting. It may well be that Mr Kelly did not say to Mr Kirwan that a concluded agreement had been reached. It may well be that Mr Kirwan did not get the impression that a concluded...