Haldane v Rooney

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 02 November 2004
• Neutral Citation: [2004] IEHC 344
• Court: High Court
• Docket Number: [2003 No. 13500P]
• Date: 02 November 2004

[2004] IEHC 344

THE HIGH COURT

2003/13500P

[2004] IEHC 344

HALDANE v. ROONEY

WILLIAM HALDANE AND LISA HALDANE

PLAINTIFFS

AND

THOMAS ROONEY

DEFENDANT

Citations:

STUD MANAGERS LTD V MARSHALL 1985 IR 83

DELTA VALE PROPERTIES LTD V MILLS & ORS 1990 1 WLR 445

RIGHTSIDE PROPERTIES LTD V GRAY 1974 2 AER 1169

DIMSDALE DEVELOPMENTS (SOUTH EAST) LTD V DEHAAN (1983) 47P & CR1

COUNTRY & METROPOLITAN HOMES SURREY LTD V TOPCLAIM LTD 1997 1 AER 254

LAW SOCIETY STANDARD CONDITIONS OF SALE 2ED CONDITION 6.8

BABACOMP LTD V RIGHTSIDE PROPERTIES 1973 3 AER 876 1974 1 AER 142

GOLDSMITHS CO V WEST METROPOLITAN RAILWAY CO 1904 1 KB 1

ESPIN V PEMBERTON 1859 3 DEG&J 547

Synopsis:

- [2004] 3 IR 581

the plaintiffs sought specific performance of an agreement whereby the defendant agreed to sell to them land in respect of which he served a completion notice in accordance with condition 40 of the Law Society General Conditions of Sale. The plaintiff failed to complete the purchase by the date limited thereby and argued that the completion notice was invalid by reason of, inter alia, the allegation that it limited a shorter period than that provided for in the General Conditions and that it was served on the plaintiffs' solicitors rather than them directly. The defendant issued a motion seeking an order dismissing the plaintiffs' action on the basis of it having no reasonable possibility of success.

Held by Finnegan P in dismissing the plaintiffs' action on the grounds that it had no reasonable possibility of success that the completion notice served by the vendor clearly intended to invoke condition 40 of the Law Society General Conditions of Sale and was sufficient to convey that intention to the plaintiff. That the date of service of a completion notice was excluded from the calculation of the time limited thereby. That the general rule was that a notice to a solicitor was actual notice to his client and the completion notice complied with condition 40 in that respect.

Reporter: P.C.

1 Finnegan P. delivered on the 2nd day of November 2004.

2 By Plenary Summons issued on the 3 ^rd December 2003 the Plaintiff seeks specific performance of an agreement made between the parties on or about the 26 ^th day of November 2002 whereby the Defendant agreed to sell and the Plaintiff agreed to purchase the lands and premises comprised in Folios 8531F and 12300F of the Register of County Kerry or in the alternative damages in addition to or in lieu of specific performance. The matter comes before me by way of Motion issued on the 12 ^th day of May 2004 in which the Defendant seeks an Order pursuant to the inherent jurisdiction of the Court or Order 19 Rule 28 of the Rules of the Superior Courts dismissing the Plaintiff's action it having no reasonable possibility of success. The jurisdiction to make such an Order is well established since the decision in Barry v Buckley (1981) I.R. 306. There is no dispute about the sequence of events. The Defendant's solicitor issued the contracts on the 14 ^th December 2001 and this was followed by protracted correspondence. The contracts were ultimately executed by the Plaintiff and the Defendant and dated 26 ^th November 2002. The contract is in the Law Society of Ireland Standard Form 1995 Edition. The closing date was not inserted into the Memorandum and accordingly the closing date provided for in the general conditions applied, the first working day after the expiration of five weeks computed from the date of sale. There was an anticipation that the sale would in fact close on the 16 ^thDecember but this did not happen. In that anticipation on the 10 ^th December 2002 the Defendant's Solicitor sent all necessary documents to the Plaintiff's Solicitor and requested a cheque for the balance of the purchase monies in the amount of €176,691.51 this being the euro equivalent of the contract price which had originally been stated in Irish punts. By letter dated 13 ^thJanuary 2003 the purchaser's Solicitor sent a closing statement to the vendor's solicitor under cover of a letter in the following terms-

"Dear Sirs,

We expect funds over the coming day to discharge the amounts due and owing to your client.

The amounts will be paid to your client by way of US $ which we understand is the manner in which your client wishes to be paid.

We enclose a completion statement which sets out the amounts due and owing.

We will transmit directly to your office two bank drafts in the total sum of US $166,673.09 made payable to your client being the balance due as per the attached completion statement to your client.

Yours faithfully,"

3 The Vendor's Solicitors replied by fax on the 21 ^st January 2003 in the following terms-

"Further to our recent telephone conversations, we have now been informed by our client that no dollar agreement was made between our respective clients. The agreed price is €196,809.40 less deposit paid of €20,117.89. Accordingly the sum of €176,691.51 is to be converted into dollars on the day of completion."

4 No further correspondence ensued until the 20 ^th February 2003 when the Defendant's Solicitor served a completion notice on the Plaintiff's Solicitor. The completion notice is in the following terms-

"Completion Notice

Thomas Rooney Vendor

William and Lisa Haldane Purchasers

The Vendor is able, ready and willing to complete this sale.

The Purchasers have failed to complete this sale on or subsequent to the closing date of 16 ^th December 2003.

The Purchasers are hereby required to complete the sale within a period of 28 days of the date of service of this Notice in accordance with Condition 40 of the Contract for Sale.

Dated this 20 ^th day of February 2003."

5 Gleeson McGrath Baldwin

6 Solicitors for the Purchasers

7 29 Anglesea Street

8 Dublin 2

9 No response was received from the Purchaser's Solicitors and by letter dated 7 ^th April 2003 the Defendant's Solicitors forfeited the deposit. On the 27 ^th May 2003 outside the period limited by the Notice to Complete the Plaintiff's Solicitors responded by letter as follows-

"Dear Sirs,

We refer to previous correspondence resting with your letter of the 20, ^th May 2003.

Your client has no entitlement whatsoever to forfeit the deposit of our client pursuant to Clause 41 of the Contract for Sale or for any other reason.

The contract documentation to which you refer represents a memorandum in writing as between our respective clients which, amongst other things, satisfies the requirements of the statute of frauds in that it evidences the parties to the transaction, the property being transacted and the price which was agreed upon.

However, the contract did not, and does not reflect the full extent of the agreement which came into being between our respective clients. It is common place that your client wanted to be paid in US dollars and that our client agreed to make the payment in the same currency. However, through inadvertence, oversight, or otherwise our respective clients did not agree on a date for the purposes of referencing the exchange rate between the US dollar and the euro. From our instructions and from a reading of the file, it is clear that this transaction has taken an inordinate amount of time to be brought to completion. In this context, it is noted that you first submitted contract documentation as far back as the 14 ^th December 2001. Even in the earliest days, it is notable that there was a degree of confusion concerning the purchase price and the currency in which it was to be paid.

Your client is now seeking to take advantage of this confusion. He is trying to profiteer and seek unjust enrichment at the expense of our client by exploiting the fact that the exchange rate between the US dollar and the euro has moved to a significant degree over the passing of months. In so doing your client is endeavouring to act in an unconscionable fashion and against his own bargain.

In the absence of any possibility of reaching agreement in relation to the dollar/euro conversion rate, the only course of action open to our client (who is always was and remains ready willing and able to complete this transaction) is to tender the balance of the purchase monies as per contract to you on behalf of your client in euro to satisfy the memorandum as executed between the parties.

Accordingly we enclose our cheque in the sum of €176,691.51 to represent the balance monies payable to you at this point in time. The sum is computed having regard to the fact that the purchase price as agreed (in euro) amounted to €196,809.40 and the fact that a deposit of €20,117.89 being paid to date.

As far as we are concerned, there is no question of interest penalties or forfeiture arising as the disagreement between the parties has been largely caused by your client's intransigence and by his continued endeavours to gain unjust enrichment at the expense of our client.

In your letter of the 10 ^th December last, all of the deeds and documents of title were transmitted to us to be held in trust pending completion. As far as we are concerned the present payment of the balance of the purchase price brings the matter to completion."

10 The Defendant's Solicitors rejected the foregoing contentions in a letter dated the 30 ^th May 2003 and returned the cheque. The Plenary Summons was then issued on the 3 ^rd December 2003. A lis pendens was registered on the 30 ^th March 2004.

11 Counsel for the Defendants places particular reliance on the judgment of Costello J. in Stud Managers Limited v Marshall 1985 I.R. 83 and in particular a passage at page 86-

"The...