Heffernan v Murray and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Binchy |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] IEHC 196 |
| Court | High Court |
| Date | 13 March 2015 |
[2015] IEHC 196
THE HIGH COURT
BETWEEN
AND
AND
Contract – Breach of contract – Specific Performance – Damages – The Partnership Act, 1890.
Facts: The plaintiffs claimed specific performance of an agreement in writing between plaintiffs and the defendants' partnership with the second named defendant being the member of the partnership. The plaintiffs also claimed damages for the losses suffered. The plaintiffs claimed that the defendants failed to perform some of the conditions of the contract for the sale.
Mr. Justice Binchy held that the claim of the first name plaintiff would be granted. The Court found that the first named plaintiff would be entitled to receive an award of damages jointly and severally from all the defendants. The Court held that the claim of the second name plaintiff would not succeed as being the member of the partnership. The Court held that the defendants failed to perform some of the conditions of the contract for sale. The Court further held that the claim against the thirteenth named defendant would be dismissed as he was neither a party to the contract for sale nor was he a member of the partnership.
JUDGMENT of Mr. Justice Binchy delivered on the 13th day of March, 2015
1. In these proceedings the plaintiffs claim specific performance of an agreement in writing entered into between the plaintiffs and the first to twelfth named defendants trading as Ballykisteen Developments Partnership and the thirteenth named defendant John Simpson whereby, inter alia, the Defendant agreed to provide the Plaintiffs with a dwelling house and garage at a location to be specified by the Plaintiffs and to the specifications set out therein. In the proceedings the plaintiffs also claim, inter alia, damages in lieu of or in addition to specific performance. The proceedings were heard over six days between the 3 rd of December 2014 and the 11 th of December 2014.
2. In opening the case, counsel for the plaintiffs, Mr. Delaney SC informed the Court that by reason of the fact that the defendants were not in a position to transfer to the plaintiff the site (on which the house and garage were to be built), the plaintiffs were now electing to claim damages in lieu of specific performance, which the plaintiffs would claim in the amount of obtaining a similar house in a similar location. Counsel informed the court that the main concern of the plaintiffs was to get enough money to obtain what they should have received had the contract been performed and therefore the plaintiffs would not be seeking additional damages in the sum of €250 per week as claimed in paragraph (e) of the indorsement of claim and as referred to in paragraph 29 of the statement of claim.
3. By agreement for sale made in writing dated the 25 th May, 2005 (hereinafter referred to as the "contract for sale") the plaintiffs entered into a contract for sale of their dwelling house known as the "Groom's House", Ballykisteen, Co. Tipperary being all the property the subject matter of folio 21702F of the register of Co. Tipperary with Mr. Barry Harte, the third named defendant, and George Murphy the twelfth named defendant, trading as Ballykisteen Development Partnership (which Partnership is hereinafter referred to as "the Partnership"). The name of Mr. Simpson, the thirteenth named defendant had originally been endorsed on the contract for sale but at the time of execution of same his name was removed and its removal was noted by the initials of the solicitors acting on behalf of the parties to the contract for sale. The contract for sale was signed in person by each of the plaintiffs and on behalf of the purchaser by Mr. Eugene Tormey, solicitor for thee Partnership. The agreement was subject to sixteen special conditions most of which are relevant to the within proceedings and which I set out below in accordance with the numbering of the conditions as appearing in the contract for sale:
2 "7. The purchasers have already obtained planning permission for proposed development on adjoining lands and premises known as Ballykisteen Golf and Country Club, Ballykisteen, Tipperary, which proposed development will be a mix of residential and commercial units. The said development allows for inter alia the demolition of the premises in sale. Compliance with the said planning permission and all works relating to same shall be a matter solely for the Purchasers at the Purchaser's expense.
8. Closing (as here and after defined) shall take place on the expiry of twelve months from the date hereof or earlier if agreed.
9. On closing, the Vendors shall hand over vacant possession of the premises in sale to the Purchasers at which point in time an unencumbered freehold title to the said premises shall pass to the Purchasers. If and when called upon by the purchasers, prior to closing, the Vendors will grant a revocable licence to the Purchasers to enter upon and carry out development works (to be agreed in writing prior to the granting of said licence) on the premises in sale.
a 10(a). The Purchasers shall, no later than four weeks from the date hereof, effect and complete an assurance to the Vendors of the Site (referred to in special condition 11 hereinafter contained) and shall furthermore, within the same period, enter into a binding agreement whereby the Purchasers will contract with the Vendors for the erection of a dwelling house and garage as per the copy map affixed hereto on the said site more particularly referred to in special condition 11 hereinafter contained and to complete the said dwelling house and garage on or before the closing date - "Completion" in this regard meaning completion to the satisfaction of the Vendors appointed consulting Engineer/Architect.
b 10(b). The Purchasers are presently applying for planning permission for the erection of the proposed dwelling house and garage on the site more particularly referred to in sub paragraph (a) hereof - the Site. In the event that the Purchasers have not secured planning permission for the proposed development on the Site within six months of the date hereof or such further time as may be agreed in writing between the parties hereto, the obligations of the Purchasers under the within agreement for sale and more particularly but not to the exclusion of any other condition special condition 11 hereof in relation to completion of dwelling house and garage aforesaid shall apply to the site more particularly coloured in yellow on the said map attached hereto and the same time limits shall apply or alternatively, at the Vendors' sole discretion shall apply to an alternative site as hereinafter in this special condition set out.
In default in the foregoing respect the obligations of the purchasers under the within agreement for sale and more particularly, but not to the exclusion of any other condition, special condition 11 hereof in relation to completion of dwelling house and garage aforesaid shall apply to a site at another location, not within the Development known as Ballykisteen Golf and Country Club aforesaid, of the Vendors choice which said Site shall be acquired at the direction of the Vendors but at the expense of the Purchasers.
(c) Furthermore, on closing, the Purchasers shall grant to the Vendors, pending closing as hereinafter defined, exclusive possession and control of one three bedroomed lodge and one two bed roomed lodge presently being developed by or on behalf of the Purchasers in the complex known as "Ballykisteen Golf and Country Club" free of rent and without interruption. Possession and control of the said units shall be retained by the Vendors pending absolute compliance by the Purchasers with their obligations herein contained.
11. Subject to what has hereinbefore appeared, the consideration for the sale herein shall consist of payment, on the exchange of the within agreements, of €72,000 and also the erection and satisfactory completion of a dwelling house and garage as per the plans and specifications attached hereto on the site more particularly coloured orange on the copy map affixed hereto or as hereinbefore provided for on the site coloured yellow on the said plan attached thereto. The said dwelling house and garage shall be to the specification attached hereto save that the Purchasers shall not be responsible for installation of windows, doors and interior finishes apart from painting for which the Purchasers will be responsible. On satisfactory completion of the said dwelling house and garage and passing over of vacant unencumbered possession thereof and title thereto to the Vendors the obligations of the Purchasers set out in special condition 10(b) hereof shall cease. The said payment of €72,000 shall not under any circumstances be refunded.
12. In the event that the aforementioned proposed dwelling house and garage have not been completed and handed over to the Vendors as hereinbefore set out the Purchasers shall pay to the Vendors a fine of €250 per week from the closing date to the date of handing over of the said completed dwelling house and garage to the Vendors by the Purchasers.
13. The Vendors shall licence entry upon the premises in sale by the Purchasers for the purpose of commencement of site works for the Purchasers' proposed development scheme in respect of a neighbouring premises (heretofore known as Ballykistten Golf and Country Club). The Purchasers shall maintain and indeed furnish evidence of adequate employers and occupiers' liability...
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