Jodifern Ltd v Fitzgerald

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 28 July 1999
• Neutral Citation: [1999] IEHC 19
• Court: High Court
• Docket Number: Record No. 1999/3024P
• Date: 28 July 1999

[1999] IEHC 19

THE HIGH COURT

Record No. 1999/3024P

JODIFERN LTD v. FITZGERALD

BETWEEN

JODIFERN LIMITED

PLAINTIFF

AND

PATRICK G FITZGERALD AND MARGARET FITZGERALD

DEFENDANTS

Citations:

RSC O.19 r28

BARRY V BUCKLEY 1981 IR 306

SUN FAT CHAN V OSSEOUS LTD 1992 1 IR 425

SUPERMACS (IRL) LTD V KATESAN (NAAS) LTD UNREP MACKEN 15.3.1999

MULHALL V HAREN 1981 IR 364

BOYLE V LEE 1992 1 IR 555

O'NEILL V RYAN 1993 ILRM 557

Synopsis

Contract

Contract; subject to contract; motion to strike out plaintiff's proceedings for specific performance of contract for sale of land; whether plaintiff's claim for specific performance can succeed; whether there is a completed agreement between the parties; whether completed agreement is evidenced in writing for purposes of the Statute of Frauds, 1695; whether there is part performance.

Held: Proceedings struck out.

Jodifern Limited v. Fitzgerald - High Court: McCracken J. - 28/07/1999

The defendants sought an order striking out the proceedings contending that the plaintiff had no chance of success. Strike out under Order 19, Rule 28 is only available if no case is revealed purely on the pleadings. When exercising the inherent jurisdiction of the court affidavit evidence may be examined. On the wording of the plaintiff’s statement of claim it could be said that no case could be established. The rule for interpretation of contracts headed “subject to contract” is settled. Correspondence thus headed is not sufficient note of memorandum to satisfy the Statute of Frauds, 1695. The court so held in finding for the defendant and striking out the proceedings.

Mr Justice McCracken

1 This Motion seeks an Order striking out these proceedings either pursuant to Order 19 Rule 28 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the Court. In either case, the Defendants claim that the Plaintiff cannot succeed in these proceedings, and expressly accept that if there is any possibility of success, the Plaintiff is entitled to continue its action. Before considering the facts of this case, I think it well to set out the circumstances on which the Court has power to strike out proceedings.

2 Order 19 Rule 28 of the Rules of the Superior Courts Rules provides:-

"The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just."

3 In addition to the specific rule, there is an inherent jurisdiction in the Court to ensure that there is no abuse of the process of the Court.

4 InBarry v. Buckley (1981) I.R. 306, which, like the present action, was an action for specific performance, Costello J. said at page 308:-

"The jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If having considered the documents, the Court is satisfied that the Plaintiffs case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a Defendant."

5 That case was considered, although not expressly approved, by the Supreme Court inSun Fat Chan v. Osseous Limited (1992) 1 I.R 425. In commenting onBarry v. Buckley. McCarthy J. said at page 428:-

"Generally, the High Court should be slow to entertain an application of this kind and grant the relief sought.

Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture. With that qualification, however, I recognise the enforcement of a jurisdiction of this kind as a healthy development in our jurisprudence and one not to be disowned for its novelty though there may be a certain sense of disquiet at its rigor. The procedure is peculiarly appropriate to actions for the enforcement of contracts, since it is likely that the subject matter of the contract would, but for the existence of the action, be the focus of another contract."

6 Barry v. Buckley was also considered and more expressly approved of by the Supreme Court in O'Neill v. Ryan (1993) ILRM 557, and was very recently considered by Macken J. in Supermac's (Ireland) Limited and Another v. Katesan (Naas) Limited and Another (unreported 15th March 1999). In her judgment in that case Macken J. distinguishes between the two types of relief, and points out that relief under Order 19, Rule 28, can only be obtained if it is clear that no case can be established purely on the pleadings. On the other hand, the approach when considering the inherent jurisdiction is set out by her at page 5 of the judgment as follows:-

"Turning now as to the question as to whether or not the Defendants are entitled to have their relief relying on the inherent jurisdiction of the Court, when one is considering a claim of this nature based on the inherent jurisdiction of the Court, it is permissible for affidavit evidence to be filed. A number of affidavits have been filed, and although there are several conflicting elements in the affidavits there are certain principles which Mr Buttonshaw has correctly acknowledged and conceded, including the fact that I must assume:-"

(a) That every fact pleaded by the Plaintiffs in their Statement of Claim is correct and can be proved at trial; and

(b) that every fact asserted by the Plaintiffs in their affidavits is likewise correct and can be proved at trial.

7 This particular approach which is adopted as being the correct approach in all of the cases in which affidavit evidence has been adduced, does mean that, in so far as there may be conflict between matters averred to by the Plaintiffs and the Defendants in their respective affidavits, such conflicts must be, at least for the purposes of this application, resolved in favour of the Plaintiff."

8 I entirely agree with her and would adopt this analysis of the position.

9 The Plaintiffs claim in the present case is stated in the Plenary Summons to be:-

"Specific performance for an agreement for sale made, in or around the 20th January 1999 between the Plaintiff (acting through his agent Thomas Coughlan) of the one part, the Defendants of the other part whereby the Plaintiff agreed to purchase and the Defendants agreed to sell ALL THAT the lands at Ballinvriskig, White's Cross, in the County of Cork comprising approximately 111 acres or thereabouts for the total price or sum of £2,000,000."

10 In the Statement of Claim there is no contract of 20th January 1999 pleaded, but rather it is said at paragraph 3:-

"By two agreements in writing made in or around the month of November between the Plaintiff through its agent, Thomas Coughlan of the one part and the Defendants of the other part, the Defendants agreed to sell and the Plaintiff agreed to purchase ALL THAT part of the lands comprised in Folio 10845 of the Register of Freeholders, County of Cork comprising approximately 111 acres or thereabouts and as therein identified for the total price or sum of £2,000,000".

11 Obviously, on the wording of the Statement of Claim, it cannot be said that the Plaintiffs claim could not succeed, as it is pleaded that there were two agreements in writing. However, a considerable amount of Affidavit evidence has been filed which show that while two documents exist, they are described in the correspondence as"pro forma agreements". It is the Defendant's contention that, notwithstanding the existence of these documents, there never in fact was a completed contract between the parties and furthermore, even if there was such a completed contract, it was not the contract set out in those documents, and that any written evidence of any such agreement can only be contained in correspondence from the Defendants Solicitors which was always headed "subject to contract/contract denied".

12 There is very little dispute on the facts between the parties, as virtually the entire negotiation was carried out in correspondence, all of which has been exhibited. It would appear that prior to 8th July 1998 there was contact between the parties, and the possibility of a sale of these lands by the Defendant to Thomas Coughlan or some person nominated by him was discussed. The correspondence between the Solicitors commences on that date with the a letter from the Plaintiffs Solicitor to the first Defendant alleging that terms had been agreed in principle, subject to formal contracts for sale, for the sale of the land for £1,500,000. It rapidly became clear, however, that this was far from an agreed price, and ultimately the Plaintiffs Solicitor wrote to the Defendants” Solicitors on 23rd September 1998 saying:-

"Following our letter of the 5th August last, we understand that our clients have had further discussions. The matter has now been agreed as follows: "

13 “Our client will acquire from your client the entire of your clients lands, excluding only the bungalow of Mr Patrick Fitzgerald Senior, together with the curtilige surrounding same, for a consideration of two million pounds (£2,000,000).

14 We understand that you have instructions in this regard and, accordingly, await draft contracts for sale at your convenience, and oblige.

15 We confirm that your clients offer to purchase does notinclude your clients milk quota”."

16 This letter was headed "subject to contract/contract denied".

17 In response to this, by letter...