Jestdale v Millennium Theatre Company

JurisdictionIreland
JudgeMr. Justice Lavan
Judgment Date31 July 2001
Neutral Citation[2001] IEHC 233
CourtHigh Court
Docket NumberNo. 12066P/2000,[2000 No.
Date31 July 2001

[2001] IEHC 233

THE HIGH COURT

No. 12066P/2000
JESTDALE LTD v. MILLENNIUM THEATRE CO LTD
BETWEEN/
JESTDALE LIMITED
Plaintiff

- and -

MILLENNIUM THEATRE COMPANY LIMITED
Defendant

Citations:

SUPERMACS V KATESAN (NAAS) LTD 2001 1 ILRM 401

SWEENEY V DUGGAN 1997 2 IR 531

SUN FAT CHAN V OSSEOUS LTD 1992 1 IR 425

BARRY V BUCKLEY 1981 IR 306

ENNIS V BUTTERLY 1997 1 ILRM 28

RUBY PROPERTY COMPANY LTD V KILTY UNREP MCCRACKEN 1.12.1999 1999/22/7264

JODIFERN LTD V FITZGERALD 2000 3 IR 321

Synopsis

CONTRACT

Rescission

Landlord and tenant - Practice and procedure -Abuse of process - Dismissal of proceedings - Refusal by defendant to extend completion date - Whether proceedings constituted abuse of process - Whether planning permission obtained defective - Whether plaintiff's claim should be struck out (2000/12066P - Lavan J - 31/7/01)

Jestdale Ltd v Millennium Theatre Company Ltd - [2001] 3 IR 337

The plaintiff had agreed to take a lease of premises from the defendant. As part of the agreement the plaintiff had agreed to undertake certain works in accordance with planning permission obtained by the defendant. The plaintiff had not completed the works within the timeframe and the defendant purported to rescind the agreement. The plaintiff issued proceedings seeking to challenge the rescission. The defendant then sought to have the plaintiff's claim struck out as constituting an abuse of process. Mr. Justice Lavan held that the plaintiff had failed to honour its commitments under the agreement. The plaintiff's claim must fail and the claim must be struck out.

1

JUDGMENT of Mr. Justice Lavan delivered the 31st July, 2001

2

These proceedings arise out of an application by the defendant, Millennium Theatre Company Limited, to have the Court, pursuant inter alia to its inherent jurisdiction, strike out the within proceedings as an abuse of process on the basis that the plaintiff's claim must fail.

3

By agreement in writing dated the 10th December, 1999, made between the defendant and the plaintiff, Jestdale Limited, the defendant agreed to grant and the plaintiff to take a lease of the premises formerly known as the Rotunda Picture House and now known as the Ambassador Cinema. At all material times, the defendant held a leasehold interest in the property. It was an express term of the agreement at issue that the defendant would demise the property to the plaintiff upon completion of certain works carried out in accordance with planning permission obtained by the defendant prior to the signing of the agreement. The agreement also made express provision for a recission of the agreement (without a right to compensation for work done) in the event that the works were not completed by a certain date. Alternatively, the defendant was given the discretion to extend the due date for completion of the works or to take such steps as it deemed appropriate to enforce its rights.

4

The works were not completed on time, and the defendant refused to extend the completion date. The plaintiff claimed that it could not fulfill its obligations by virtue of the acts or omissions of the defendant, in particular due to the allegedly defective planning permission obtained. It was contended that the defects in the planning permission rendered it wholly inoperable for the plaintiff's intended purpose. The plaintiff also contends that the listing of the property as a Grade 1 Listed Building, the possibility of which was not alluded to at the time it entered into the agreement with the defendant further inhibited its ability to carry out its obligations under the agreement, and in particular delayed the submission of any new or alternative Planning Application.

5

The plaintiff addressed the problems relating to the planning permission to the defendant at a meeting on or about the 18th July, 2000, at which it indicated that it was necessary to submit new planning permission in order to progress the project. The defendant refused to accept the contention that the project could not proceed under the original planning permission and also refused to extend the completion date of 24th November, 2000, as fixed by the agreement. The plaintiff did not pay mesne rates due for the month of July. The defendant served Notice of Recission of the Agreement on 29th August, 2000, and purported to rescind the agreement on 8th September, 2000. The plaintiff has contested the validity of the purported recission and issued and served the Plenary Summons in these proceedings on 27th October, 2000.

6

In its Statement of Claim, the plaintiff alludes, inter alia,to the following implied terms of the Agreement:

7

a "c) the defendant would if necessary, extend the completion date under the agreement in circumstances where the plaintiff could not fulfill its obligations by virtue of the acts or omissions of the defendant

8

d) the defendant would not unreasonable withhold its consent to extend the completion date under the agreement in circumstances where the plaintiff could not fulfill its obligations by virtue of the acts or omissions of the defendant."

9

The plaintiff seeks a declaration that the purported Recission Notice was invalid. It also seeks specific performance of the agreement with a declaration recognising its entitlement to relief from forfeiture under the equitable jurisdiction of the Court.

10

In its Defence, the defendant denies that it has breached any terms or representations as alleged in the Statement of Claim. The defendant draws particular attention to the clause in the agreement whereby the plaintiff admitted that it had inspected same and that it had entered into the agreement solely on the basis of that inspection and the terms thereof. The defendant asserts that the plaintiff is not entitled to rely upon any implied term in the aforesaid agreement nor upon any representation of the nature alleged (the existence of both of which the defendant in any event denies). Furthermore, the defendant denies that there were any defects in the planning permission as alleged, and also denies that same was rendered inoperable for the plaintiff's intended purpose. Even if defects in the planning permission were found to exist, the defendant denies that either it or the listing of the building delayed the submission of any alternative planning application.

11

The defendant denies that the plaintiff had incurred expense in connection with the aforesaid property or that it had been entitled to withhold any payment of mesne rates until any problems pertaining to the property had been addressed. The defendant asserts that the Notice of Recission served on the plaintiff had been valid and entitled it to terminate the agreement between the parties. While denying that any alleged loss or damage on the part of the plaintiff (if such is found to have been suffered by it) had been caused by any act or omission of the defendants, the defendant reserves the right to furnish further particulars of contributory negligence as same come to hand. The defendant claims that the plaintiff is estopped by agreement...

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