Heatherridge Associates Ltd (in members voluntary liquidation) v Curran
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 27 July 2020 |
| Neutral Citation | [2020] IECA 204 |
| Docket Number | Appeal Number: 2019/381 |
| Court | Court of Appeal (Ireland) |
| Date | 27 July 2020 |
(IN MEMBERS VOLUNTARY LIQUIDATION)
AND
[2020] IECA 204
Faherty J.
Ní Raifeartaigh J.
Power J.
Appeal Number: 2019/381
THE COURT OF APPEAL
Civil
Summary judgment – Liability – Costs – Plaintiff seeking to appeal against summary judgment – Whether the plaintiff was entitled to interest on the sum awarded
Facts: The plaintiff, Heatherridge Associates Ltd (in members voluntary liquidation), appealed to the Court of Appeal from the judgment (6 June 2019) and order (28 June 2019) of the High Court (Meenan J) in which judgment was granted in favour of the plaintiff in the sum of €187,579.92 (€152, 504.00 plus VAT) in circumstances where the plaintiff claimed that €1,130, 418 plus VAT and legal costs was the true sum due and owing to them. Specifically, what was appealed was the order: (i) granting the plaintiff judgment against the first to fifth defendants, Mr Curran, Latteridge Ltd, Harding Hotel Ltd, Yarton Ltd and The Coach Ltd, of only €187,579.92, and costs up to 2 November 2018 but limited to 50% of such costs to be taxed in default of agreement; (ii) the order that the plaintiff pay the defendants’ costs as and from 2 November 2018 (the date of the lodgement) to date to be taxed in default of agreement; and (iii) the no order as to costs in respect of proceedings entitled Heatherridge Associates v. Cos. Act 2018/409COS. The defendants cross-appealed the award to the plaintiff of 50% of its pre-lodgement costs. Arising from the parties’ submissions, the issues considered by the Court were: (1) When was agreement reached between the parties? (2) What was the amount for which the defendants were liable? (3) How was the March 2010 Agreement implemented? (4) What was the effect of the December 2011 Agreement? (5) Did the defendants repudiate or refuse to honour the March 2010 Agreement and/or the December 2011 Agreement? (6) Did the trial judge err in the manner in which costs were dealt with? (7) Is the plaintiff entitled to interest on the sum awarded?
Held by Faherty J that there was no merit in the contention that the trial judge erred in failing to find that concluded arrangement existed between the parties prior to March 2010. She found that the March 2010 Agreement was the originating negotiated agreement between the parties and that there was no renunciation or repudiation of an existing agreement. She found that there was no error committed by the trial judge in failing to find that the March 2010 Agreement had been repudiated by the defendants. She held that, even if it could be said that the trial judge placed undue reliance on the Declaration of Solvency issue, or otherwise overstated its relevance to the issues before him (which she did not believe to be the case), insofar as the plaintiff maintained that the erroneous reliance tainted the trial judge’s findings as to when agreement was reached between the parties, she rejected that submission. She held that, given that the sum awarded to the plaintiff was less than the lodgement, there was no basis to impugn the trial judge’s post lodgement costs order. She was satisfied that there was no basis for the Court to interfere with the trial judge’s ruling on the pre-lodgement costs; it followed that the defendants’ cross appeal on this issue also failed. Nothing put forward by counsel for the plaintiff persuaded her that this case was one which merited the award of Courts Act interest.
Faherty J held that she would dismiss the appeal and the cross appeal.
Appeal dismissed.
This is the plaintiff's appeal from the judgment (6 June 2019) and Order (28 June 2019) of the High Court (Meenan J.) in which judgment was granted in favour of the plaintiff in the sum of €187,579.92 (€152, 504.00 plus VAT) in circumstances where the plaintiff claims that €1,130, 418 plus VAT and legal costs is the true sum due and owing to them. Specifically, what is appealed is the Order:
i. granting the plaintiff judgment against the first to fifth defendants of only €187,579.92, and costs up to 2 November 2018 but limited to 50% of such costs to be taxed in default of agreement;
ii. the order that the plaintiff pay the defendants' costs as and from 2 November 2018 (the date of the lodgement) to date to be taxed in default of agreement; and
iii. the no order as to costs in respect of proceedings entitled Heatherridge Associates v. Cos. Act 2018/409COS.
The defendants have cross-appealed the award to the plaintiff of 50% of its pre-lodgement costs.
The plaintiff is an architectural firm. It is a single member company, limited by shares, with a registered office at 63 Rock Road, Blackrock. County Dublin.
The first defendant is a company director and at all material times was a director and/or shareholder and/exercised a controlling interest in the second to sixth named defendants. At the outset of the hearing in the High Court, the sixth named defendant was struck out of the proceedings.
The plaintiff's claim was to recover the sum of €1,130,418 (plus VAT) from the defendants, said to be the balance of monies due and owing for architectural seivices provided to the defendants during the years 2000-2009 in respect of a number of projects. As described in the High Court judgment, these projects were the Blanchardstown House, The Europa Hotel. Drogheda. the Ceann Sibeal Hotel. Ballyferriter, the Coachmans Inn. Harding Hotel, the Crawley Apartments. London and Castleknock Apartments. In the alternative, the plaintiff claimed the sum of €1,130,418 (plus VAT) on the basis of a quantum meruit.
At the outset of his judgment, the trial judge stated that an important feature of the case was that the plaintiff sought to recover the fees claimed after the economic collapse despite the services having been provided during the “boom” years.
The trial judge found that the starting point for the plaintiff's claim was a meeting held in May 2009 between the first defendant (hereinafter “Mr. Curran”) and Mr. Frank Ennis. a director of the plaintiff company. The trial judge noted that this was “at a point when the economic crisis was seriously impacting the plaintiff'. The High Court was furnished with a document entitled “Hugh Curran - Summary of Fees as tabled at client meeting May 2009”. This document listed the projects which the plaintiff company had worked on. The total amount sought in relation to same was €552,409, exclusive of VAT. In respect of each of the projects named in the document, there were two headings, namely “RIAI Percentage Recommended” and “Discounted Percentage Offered”. The trial judge formed the view that the sum being claimed in the document was in effect an offer made by the plaintiff. The trial judge found that the offer was not accepted by the defendant.
As the trial transcripts show, Mr. Ennis' evidence in relation to the meeting in May 2009 was that he wanted the fees due to be paid and that he was offering Mr. Curran a very significant discount to which Mr. Curran “didn't disagree, neither did he agree”. Mr. Ennis' understanding of the meeting was that he had given Mr. Curran “a very good deal” and Mr. Curran “seemed if not appreciative of it that he was accepting of it.” It is common case that at the May 2009 meeting, Mr. Curran gave Mr. Ennis a cheque for €50.000 plus VAT in respect of which the plaintiff company issued an invoice some months later.
On 5 March 2010. Mr. Curran wrote to the Accounts Department of the plaintiff company in connection with certain of the projects upon which the plaintiff had worked, in the following terms:
“In connection with the fee statement you sent me some months ago … I totally disagree with the [fees], which were never agreed before you carried out the work.”
The trial judge found that the next significant event occurred when Mr. Ennis and Mr. Curran met again on 8 March 2010. He was satisfied that following the meeting on 8-4- March 2010, Mr. Ennis and Mr. Curran reached an agreement as to what the outstanding fees were and agreed a schedule for their repayment. As a result of this he found that no claim arose on the basis of a quantum meruit. The trial judge found evidence of an agreement having been reached on 8 March 2010 in a letter of 10 March 2010 from the plaintiff to Mr. Curran. The letter reads as follows:
“Frank Ennis and Associates Outstanding Fees.
Further to your meeting with Frank Ennis on 8 th March, I write to confirm the details of the settlement agreement reached. Frank Ennis tabled fee amounts outstanding to the total sum of €552,407 as per the attached schedule.
An Agreement was reached for full and final settlement in the total amount of €265,000 + VAT. We acknowledge with thanks receipt of your initial payment of €25,000 + VAT by cheque on 8 th March. It was further agreed that the balance of €240,000 would be paid over 36 months in equal instalments of €6.666 plus VAT, commencing in April 2010 with the final payment in March 2013.
Our preference is that this arrangement be fulfilled by the setting up of a standing order to our account, the details of which are provided below…
I would appreciate if you could arrange the set-up of this standing order as soon as possible, for the total VAT inclusive sum of €8065.86 to arrive in our account on the 15 th of each month.”
As testified to by Mr. Ennis, the €25,000 +VAT cheque was handed to him by Mr. Curran at the meeting on 8 March 2010.
It is common case that the letter of 10 March 2010 contained an error as to the amount which had been agreed between Mr. Ennis and Mr. Curran.
This was brought to the plaintiff's attention in an email dated 12 April 2010 from Mr. Curran to...
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