Irish Life Assurance Plc v Quinn

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date31 March 2009
Neutral Citation[2009] IEHC 153
Docket Number[No. 789S./2007]
CourtHigh Court
Date31 March 2009
Irish Life Assurance Plc v Quinn

BETWEEN:

IRISH LIFE ASSURANCE PLC
PLAINTIFF

AND

GRAHAM QUINN
DEFENDANT

[2009] IEHC 153

[No. 789S./2007]

THE HIGH COURT

LANDLORD AND TENANT

Lease

Arrears of rent - Claim for sum due and owing on foot of guarantee - Service charges - Absence of dispute regarding amount of rent arrears - Whether entitlement to look for service charge until amount certified - Terms of lease - Covenant to pay without any deduction - Clause requiring advance payment of service charge on account - Whether breach of obligations of good estate management - Departure of anchor tenant - Loss to business of tenant - Clause requiring payment without deduction - Reliance on equitable right of set-off - Cross claim arising out of same contract - Whether entitlement to equitable set-off - Failure to raise issue previously - Paucity of evidence to permit assessment of strength of cross claim - Failure to attempt to quantify cross claim - Whether bona fide defence - MacCausland v Carroll (1938) 72 ILTR 158, Moohan v S & R Motors (Donegal) Ltd [2007] IEHC 435, (Unrep, Clarke J, 14/12/2007) and Prendergast v Biddle (Unrep, SC, 21/7/1957) considered - Landlord and Tenant (Amendment) (Ireland) Act 1860 (23 & 24 Vict, c 154), s 48 - Judgment granted (2007/789S - Dunne J - 31/3/2009) [2009] IEHC 153

Irish Life Assurance plc v Quinn

LANDLORD & TENANT LAW AMDT ACT (IRL) 1860 S48

MACCAUSLAND & KIMMITT v CARROLL & DOOLEY 1938 72 ILTR 158

MOOHAN & BRADLEY CONSTRUCTION v S & R MOTORS (DONEGAL) LTD UNREP CLARKE 14.12.2007 2007/42/8816 2007 IEHC 435

PRENDERGAST v BIDDLE UNREP SUPREME 31.7.1957

Ms. Justice Dunne
1

The plaintiff herein has sued the defendant herein on foot of a guarantee entered into between the plaintiff of the one part and the defendant of the other part. The plaintiff is the landlord of a limited liability company called L'Avenue Decleor Limited which is the tenant of premises at Irish Life Mall, Irish Life Centre, Dublin 1. The sum of €73,263.60 is alleged to be due and owing by the defendant to the plaintiff on foot of the said guarantee in respect of arrears of rent and service charges.

2

A summary summons was issued on behalf of the plaintiff to recover the said sum. Following the entry of an appearance on behalf of the defendant, an application was made to the Master of the High Court for liberty to enter final judgement. Following the exchange of affidavits, the matter was adjourned to the judge's list for hearing. The matter came before me from hearing on 20 March 2009.

3

In essence, there was no dispute in relation to the amount alleged to be due in respect of rent. There was some dispute in respect of the calculation of the figures due in respect of the sum claimed by way of service charge. In that regard, it was submitted on behalf of the defendant that there was no entitlement to look for the service charge until such time as the amount of the service charge was certified annually by a certificate signed by the auditors of the landlord. It was claimed that the certificate for the years 2006 and 2007 had not been provided. That is correct. Since the commencement of the proceedings, the certificate for 2006 has been supplied. The certificate for 2007 is still awaited. In regard to this argument, reliance was placed on the provisions of the lease. The issue of the service charge is dealt with in the lease at clause 3.2. It provides under the tenant's convenants:

"To pay the landlord without any deduction by way of further and additional rent"

(a) … a reasonable percentage of the expenses and outgoings incurred by the landlord in the repair maintenance, renewal and insurance of the common parts of the areas and buildings from time to time designated by the landlord as the "centre" and the provisions therein and the other heads of expenditure set out in part one of the second schedule…

a (b)… a reasonable percentage of the expenses and outgoings incurred by the landlord in the repair, maintenance, renewal and insurance of the areas and buildings from time to time designated by the landlord as the "mall" and the provision of services they are in and the other heads of expenditure set out in part two of the second schedule…"

4

The lease continues that the payment of the service charges is subject to the following terms and provisions:

5

i "(i) the amount of the service charge shall be ascertained and certified annually by a certificate (hereinafter called the "certificate") signed by the auditors of the landlord so soon after the end of the landlord's financial year as may be practicable and shall relate to such here in manner hereinafter mentioned."

6

Relying on the provisions set out above, counsel on behalf of the defendant argued that the plaintiff herein could not issue proceedings in respect of the amount of the service charge claimed until such time as the certificate signed by the auditors of the landlord had been made available to the defendant. I have to say that that argument seems to me to be untenable in the light of the provisions of clause 3.2 (vii) which provides that:

"On every gale day of every year during the term the tenant shall pay to the landlord such a sum (hereinafter called the "advance payment") in advance and on account of the service charge for the quarter thence next ensuing as the landlord or its agents shall from time to time specify at its or their discretion to be fair and reasonable provided that subject and without prejudice to the foregoing provisions the amount of the advance payment for the quarter current at the date of the grant thereof shall be such amount as shall be certified by the landlord or its agents as fair and reasonable in all the circumstances."

7

Clause 3.2 (ix) provides:

"It is hereby agreed and declared that the landlord shall not be entitled to re-enter under the provisions in that behalf hereinafter contained by reason only of non-payment by the tenant of any advance payment of the service charge as aforesaid prior to the signature of the certificate but nothing contained in this clause or these presents shall disable the landlord from maintaining an action against the tenant in respect of non-payment of any such advance payment notwithstanding that the certificate had not been signed at the time of the proceedings subject nevertheless to proof in such proceedings by the landlord that the advance payment demanded and unpaid is of a fair and reasonable amount having regard to the prospective service charge ultimately payable by the tenant."

8

It is clear from the above provisions of the lease herein that the landlord is entitled to pursue a claim for the service charge notwithstanding that the...

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4 cases
  • Castletown Foundation Ltd v Magan
    • Ireland
    • High Court
    • 21 November 2018
    ...only to ‘deductions’ this does not include a right of set-off.’ The footnoted authorities for this are Irish Life Assurance Plc. v Quinn [2009] IEHC 153; Westpark Investments Limited v Leisureworld Limited [2012] IEHC 343; Connaught Restaurants Limited v Indoor Leisure Limited [1994] 4 ALL ......
  • BPI Telecom Ltd v Nokia (Ireland) Ltd
    • Ireland
    • High Court
    • 20 December 2012
    ...S & R MOTORS (DONEGAL) LTD 2008 3 IR 650 2007/42/8816 2007 IEHC 435 IRISH LIFE ASSURANCE PLC v QUINN UNREP DUNNE 31.3.2009 2009/22/5439 2009 IEHC 153 WESTPARK INVESTMENTS LTD & VENCOURT LTD v LEISUREWORLD LTD & LEISUREPLEX (TALLAGHT) LTD UNREP HOGAN 31.7.2012 2012 IEHC 343 GE CAPITAL WOODC......
  • Westpark Investments Ltd and Another v Leisureworld Ltd and Another
    • Ireland
    • High Court
    • 31 July 2012
    ...IR 470 1988 ILRM 620 DOWLING SET-OFF AGAINST RENT 1988 39(3) NILQ 258 IRISH LIFE ASSURANCE PLC v QUINN UNREP DUNNE 31.3.2009 2009/22/5439 2009 IEHC 153 PJ HEGARTY & SONS LTD v ROYAL LIVER FRIENDLY SOCIETY 1985 IR 524 1985/9/1747 MOOHAN & BRADLEY T/A BRADLEY CONSTRUCTION v S & R MOTORS (DON......
  • Castletown Foundation Ltd v Magan
    • Ireland
    • Court of Appeal (Ireland)
    • 6 October 2022
    ...a clause of this kind referred to ‘ deductions’ this did not necessarily exclude a right of set off: Irish Life Assurance Plc. v Quinn [2009] IEHC 153; Westpark Investments Limited v Leisureworld Limited [2012] IEHC 343; Connaught Restaurants Limited v Indoor Leisure Limited [1994] 4 All ER......
1 books & journal articles
  • Case Notes on Contracts of Guarantee
    • Ireland
    • Hibernian Law Journal No. 12-2013, January 2013
    • 1 January 2013
    ...High Court, Clarke J, 29 April 2010), on an application for a stay on execution pending appeal. 64 Irish Life Assurance plc v Quinn [2009] IEHC 153 (unreported, High Court, Dunne J, 31 March 2009) 65 Ibid, p.9 66 This distinction is canvassed in M. Donnelly, The Law of Credit and Security (......

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