Keena v Promontoria (Aran Ltd) and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 13 October 2023 |
| Neutral Citation | [2023] IECA 249 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2019/95 |
[2023] IECA 249
Murray J.
Collins J.
Whelan J.
Appeal Number: 2019/95
THE COURT OF APPEAL
Specific performance – Contract for sale – Prima facie case – Appellant appealing against the judgment and order acceding to an application for an order dismissing the proceedings by direction on the basis that the appellant had failed to establish a prima facie case – Whether the trial judge erred in the application of the test for a motion to dismiss on the basis of no case to answer
Facts: The plaintiff/appellant, Ms Keena, appealed to the Court of Appeal against the judgment and order made by Quinn J in the High Court on the 8th February, 2019, wherein at the conclusion of the appellant’s case claiming entitlement to a decree of specific performance of a contract for sale of the Ard Rí Hotel Waterford (the premises) (together with ancillary declaratory relief and damages in lieu of specific performance) as against the fourth and fifth defendants/respondents, he acceded to an application made on behalf of the fourth, fifth, sixth and seventh defendants/respondents, Promontoria (Aran) Ltd, Mr Charleton, Mr Walsh and Kilkenny Walsh Ltd, for an order dismissing the proceedings by direction on the basis that the appellant had failed to establish a prima facie case. The appellant essentially contended that the trial judge erred, inter alia, in the application of the test for a motion to dismiss on the basis of no case to answer, instancing paras. 91, 108, 115, 116, 118 and 119: (i) in finding there was no evidence that an agreement was reached with any party on behalf of the respondents as to the identity of the purchaser (para. 91); (ii) “The court in assessing the foregoing information imposed a higher standard of proof in respect of an application to dismiss ... In light of the fact that the witness statements of the defendants were put to the plaintiff the lower standard of proof was applicable”; (iii) “The learned trial judge erred in fact and law in failing to take the plaintiff’s case at its height in that the plaintiff was identifiable as the purchaser” at para. 108 where the trial judge found that the witnesses giving evidence on behalf of the appellant did not offer “evidence that it was agreed with the defendants that the purchaser would be the plaintiff”; and (iv) at para. 118 where the court held “nowhere in that evidence is it said that at the meeting it was made clear that the plaintiff was the purchaser and the Receipt does not describe the capacity in which any of the three relevant persons signed”.
Held by Whelan J that the trial judge, whilst he correctly adumbrated that what was required of the appellant was to make out a prima facie case, in substance erroneously applied a different and higher test. Whelan J held that the correct test involved an assessment as to whether there was prima facie evidence from which it could be inferred that Mr Lanigan, acting as representative for an unidentified purchaser, concluded a parol agreement earlier on 21 November 2016 for the purchase of the premises for €1,600,000 and agreed for the payment over of a non-refundable deposit of 10% to be made that same evening and whether there was prima facie evidence to support a claim for specific performance of that agreement on any basis. Whelan J found that the evidence adduced by the appellant established to a prima facie level that the appellant was the purchaser. Whelan J held that the trial judge erred in concluding to the contrary and granting the direction sought.
Whelan J held that the order of the High Court fell to be set aside. She held that the trial should resume and proceed at the convenience of the High Court. She held that the appellant, having entirely succeeded in the action, was entitled to her costs of the appeal.
Appeal allowed.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 13th day of October 2023
. This is an appeal against the judgment and order made by Mr. Justice Quinn in the High Court on the 8 th February, 2019, wherein at the conclusion of the appellant's case claiming entitlement to a decree of specific performance of a contract for sale of the Ard Rí Hotel Waterford (the premises) (together with ancillary declaratory relief and damages in lieu of specific performance) as against the fourth and fifth named respondents, he acceded to an application made on behalf of the fourth, fifth, sixth and seventh named respondents for an order dismissing the proceedings by direction on the basis that the appellant had failed to establish a prima facie case. The alleged agreement of which specific performance was sought was for the sale of the premises for a price of €1,600,000 with a payment of a non-refundable deposit of €160,000 handed over by her to the vendor's representative at the offices of Ernst & Young, of which the fifth named respondent (‘the Receiver’) was a partner. The contract was said to have been made at those offices on the night of 21 November 2016. The vendors did not complete that transaction and subsequently sold the premises to the seventh respondent (for the lesser sum of €1,500,000).
. In the judgment [2019] IEHC 12 the claim is characterised at para. 1 as follows:
“The plaintiff claims that on 21st November, 2016, she entered into a contract with the fourth and fifth-named defendants to purchase the Ard Rí Hotel in Waterford for a price of €1.6m. She claims that the contract was entered into in a series of telephone conversations on that day between her representative, a Mr. Bob Lanigan, and a Mr. Terry Byrne, an employee of Cerberus European Servicing Advisors (Ireland) Limited, who she claims had authority to bind the fourth and fifth-named defendants [Promontoria (Aran) Limited and Luke Charleton]. She claims also that this contract was evidenced in writing by a receipt for a deposit of 10% of the purchase price paid later that day, coupled with certain e-mails which followed payment of the deposit. On 30th November, 2016, her representatives were informed that she did not, in fact, have a binding contract and that the hotel was being sold to a different party. The hotel was sold later by the fifth-named defendant to the seventh-named defendant, Kilkenny Walsh Limited.”
The judgment records at para. 4 that at the conclusion of the appellant's evidence at the plenary hearing, the fourth, fifth, sixth and seventh named respondents made an application for a direction to dismiss the appellant's action:
“They claim that even if the plaintiff's evidence is accepted (which it is not), and taking the evidence of the plaintiff at its height the plaintiff has not made out a prima facie case in that the essential ingredients of a binding enforceable contract for the sale of the hotel have not [sic] been established and accordingly, that the action should be dismissed.”
The court reviewed the principles derived from the decisions of the Supreme Court in Hetherington v Ultra Tyre Service Limited & Ors. [1993] 2 IR 535 and O'Toole v Heavey [1993] 2 IR 544, in addition to the High Court decision in Moorview Developments Limited & Ors v First Active plc [2009] IEHC 214. At para. 10 the judge observed:
“Many of the facts recited are not in dispute, but others are. Having regard to the test to be applied in deciding on this application, the narrative assumes the truth of the plaintiff's evidence.”
The court noted that the first, second and third named respondents had taken no part in the proceedings and that the fourth, fifth, sixth and seventh named respondents all indicated through their respective counsel that were the application for a dismissal to be refused, they would adduce evidence. The court identified the exercise to be carried out at para. 9 of the judgment as follows:
“Accordingly, this Court must now decide whether, if the evidence of the plaintiff is to be accepted as true and taken at its highest, the plaintiff has made out a prima facie case.”
. The court then analysed the evidence of the key witness for the appellant, Mr. Bob Lanigan. That evidence disclosed that in early 2016 initial contact had been made by Mr. Lanigan with an auctioneer in connection with the property. Nothing came of that engagement. It appears that later in the year he made further contact with the auctioneer and was advised that the loan secured on the property had been sold to an investment fund. The auctioneer advised him “… that a company known as ‘Cerberus’ were now dealing with the loan.” In November 2016 Mr. Lanigan procured a contact number for Cerberus. On the 16 th November, 2016 he spoke to one Terry Byrne, an employee of Cerberus. The evidence of Mr. Lanigan to the High Court was that Mr. Terry Byrne had said to him that if “he could get in the region of €1.4 to €1.5m he would enforce the sale.” (emphasis added) The High Court judge noted that the contents of this conversation are in dispute but that for the purposes of the application for a direction to dismiss the appellant's case, “the court will accept that these words were used” (para. 19).
. On or about Friday the 18 th November, 2016 Mr. Lanigan had a conversation with Mr. Jim Treacy, father of the appellant and a successful hotelier and businessman. In the course of that conversation, it was agreed that Mr. Lanigan should engage further with Mr. Terry Byrne and that he was authorised to make an offer of €1.6m for the premises.
. The judgment considered in detail the events of Monday the 21 st November, 2016 and in particular the evidence regarding a series of three phone calls that took place on that date between Mr. Lanigan, whom the High Court described...
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Keena v Promontoria (Aran Ltd) and Others
...a motion to dismiss on the basis of no case to answer. A judgment was delivered in the Court of Appeal allowing the appellant’s appeal: [2023] IECA 249. The Court of Appeal set aside the order of the High Court and directed that the trial resume and proceed at the convenience of the High Co......