Kelly v Irish Nursery & Landscape Company

• Jurisdiction: Ireland
• Judge: WalshJ.,KENNY J.:
• Judgment Date: 01 January 1983
• Neutral Citation: 1981 WJSC-SC 1811
• Date: 01 January 1983
• Docket Number: [S.C. No. 168 of 1980],(168/1980)
• Court: Supreme Court

1981 WJSC-SC 1811

THE SUPREME COURT

O'Higgins C.J.

Walsh J.

Kenny J.

(168/1980)

KELLY v. IRISH NURSERY AND LANDSCAPE CO. LTD.

JOSEPH KELLY

v

IRISH NURSERY AND LANDSCAPE COMPANY LIMITED

AFFIRMING HIGH. 15 MAY 1980

1 delivered on the 21st day of July 1981 by WalshJ.

2 This is an appeal against the dismissal by the High Court of the plaintiff's claim for specific performance of a contract of sale whereby the defendant agreed to sell the lands described in Folio 11319 County Wicklow to the plaintiff for £85,000.

3 The terms of the contract of sale are contained mainly in a memorandum of agreement dated 6 October 1978 but also partly contained in correspondence between the defendants' solicitor and the plaintiff's solicitor. The former document contained a number of special conditions, one of which was to the effect that the purchaser should raise no requisition or make any objection on the grounds that title to part of the property was a possessory title. This particular condition is the one which gave rise to considerable amount of difficulty and prolonged negotiation between the parties. The purchaser sought to insist that the possessory title should be converted to being a registered title and paid over a deposit of £25,000 on the basis that he would not complete the sale until that was done. The vendors'position was that they were willing to lodge the necessary papers with the Land Registry to have it done but were not willing to hold up the completion of the sale until that had been carried out and were in effect standing upon the strict terms of the contract with regard to the possessory title but were willing to give such assistance as would be provided by lodging the papers in the Land Registry. The plaintiff was willing to proceed to completion if he had a letter confirming the fact that the Land Registry was prepared to convert the title. In the result the defendants decided not to proceed with the sale and returned thedeposit.

4 The provision of the contract which is foremost in the present litigation is a stipulation contained in a letter of 14 July 1978 from the defendants' solicitors to the plaintiff's solicitors when sending forward the other contract document that "it must be understood that no agreement enforceable at law is created or intended to be created until exchange of contracts has taken place".

5 The correspondence and the subsequent dealings establishes clearly that this stipulation formed part of of the contract accepted by each side. On 9 October 1978 the plaintiff's solicitors forwarded to the defendants' auctioneer a contract for sale in duplicate duly executed by the plaintiff and requested in return a contract executed by the defendants. However, it was added that this was subject to deleting clauses 3(a) and (b) in the other contract document which referred to matters which are not in issue in the present case and also subject tothe purchaser being made aware of "which portion of the property is possessory prior to exchange of contracts and has an opportunity of investigating and inspecting same and further that all information in the vendors' possession in relation to the property is made available to the purchaser on completion by way of statutory declaration or otherwise." The auctioneers wrote in reply that they had forwarded a copy of the plaintiff's solicitors' letter together with the two contracts signed by the plaintiff to the defendants' solicitor who, they said, would consider the various points which had been raised in the plaintiff's letter. The defendants' solicitors sent a copy of the contract map on 17 October, to which the plaintiff's solicitors replied on 7 November stating that his client was still interested in continuing the sale on the basis that the closing date should be deferred for a number of months pending the preparation of the necessary documents for the conversion of the possessory title into an absolute title. The letter further added that if the defendants' solicitors were prepared to undertake the conversion they ought to return the contract signed by the defendants in which case the deposit would be released. By letter of 16 November the defendants' solicitors acknowledged this and agreed the defer the date of completion to 1 June following to permit of the conversion of the title and asked to be contacted "to arrange exchange of contracts". This was followed up by a letter of 28 November from the defendants' solicitors reiterating that there was no enforceable agreement at law made or intended until the contracts had been exchanged.On 4 December the plaintiff's solicitors wrote acknowledging both letters. He made no reference to the second of the defendants' letters but dwelt mainly on the question of the conversion. However, he did say that the plaintiff was now insisting on the conversion of the title taking place before the completion and wanted the contracts which were to be signed by the defendant to be appropriately altered to cover this matter before they were sent to the plaintiff. The plaintiff's solicitors also sent on the £25,000. The defendants' solicitors, by letter of 6 December 1978, acknowledged receipt of the money but indicated that they would not advise their clients to make the sale conditional upon the conversion of the possessory title but said that they had lodged with the Land Registry an application for conversion to an absolute title. In reply to this the plaintiff's solicitors on 11 December appear to have hardened their attitude further and said that they could not advise his client to accept the sale of the property subject to possessory title unless it had been converted beforehand. On 20 December a letter from the defendants' solicitors notified the plaintiff's solicitors that the defendants were not going on with the sale and they returned the deposit of £25,000.

6 The correspondence clearly demonstrates that the enforceability of the contract for sale was dependent upon the exchange of the contracts.

7 Because of the plaintiff's insistence on seekingchanges in the terms of the contract no exchange ever took place. I am satisfied that a contract for sale did exist between the parties and it was a contract which the plaintiff unsuccessfully sought to have altered in the respects already referred to. The consequence was that the defendants refused to agree to the alterations, refused to go on with the contract, and called off the sale.

8 The plaintiff's claim must fail for the simple reason that he contracted out of such right as he might have had to enforce the contract because he agreed to have the-enforceability dependent upon an exchange of contracts. As no such exchange took place the contract cannot be enforced. It has been submitted on behalf of the plaintiff that in effect the defendants frustrated the completion of the sale by withholding their part in the exchange of contracts. In my view the defendants were at all times willing to complete the contract originally agreed upon. It was the plaintiff's efforts to have the terms changed which appeared to have eventually exasperated the defendants to the point where they did not wish to go on with the sale. In my view the defendants cannot be said to have frustrated the sale and indeed appear to have shown considerable forbearance in the face of the demands from the plaintiff to have the contract altered and offered such assistance as they could without undermining their own position under thecontract.

9 In the result I am of the opinion that the plaintiff's claim fails and this appeal must be dismissed.

10 2lst day of July 1981KENNY J.:

KENNY J.:

11 Irish Nursery and Landscape Company Limited, the defendants, are and were, at all relevant times the registered owners of the lands in Folio 11319 Co. Wicklow. It included three lots of lands which together amounted to twelve acres. The defendants were registered with an absolute title to two of them and a possessory one to the other. The defendants carried on the business of nursery gardeners on...