Maloney v Elf Investments Ltd

• Jurisdiction: Ireland
• Judge: Justice McWilliam
• Judgment Date: 07 December 1979
• Neutral Citation: 1980 WJSC-HC 342
• Docket Number: No. 295 SP/1979
• Court: High Court
• Date: 07 December 1979

1980 WJSC-HC 342

THE HIGH COURT

No. 295 SP/1979

MALONEY v. ELF INVESTMENTS

BETWEEN:

MICHAEL MALONEY

v.

ELF INVESTMENTS LIMITED

1 Judgment delivered by Mr. Justice McWilliam the 7 day of December 1979

2 By agreement in writing dated 16th March, 1978, on the 1976 edition of the. Incorporated Law Society Form, the Plaintiff agreed to sell certain lands at Lisduff, Co. Clare, to the Defendant for the sum of £39,500. The closing date was expressed to be "20 days after full planning permission and Land Commission consent received or 10/7/78 whichever be later."

3 The following special conditions were included:-

4 (1) Sale subject to purchaser getting full planning permission before July 31st 1978. If full planning permission is not forthcoming before this date purchase to be refunded his deposit without interest costs or compensation.

5 (2) Vendor reserves the right to build on SITE No. 9. It will be a dwelling in keeping with the other proposed dwellings and not a system or pre-fab building. Transfer to purchaser shall contain a covenant to this effect by Vendor and such covenant shall be registered as a burden on the property retained by the Vendor.

6 (3) Property sold subject to subdivision consent being obtained from I.L.C.

7 (4) Vendor has right of grazing until lands are fenced off.

8 (5) Sale subject to trial holes for building and drainage being satisfactory.

9 Planning permission was not obtained by the Defendant until November, 1978. The consent of the Land Commission to subdivision was obtained on 11th September, 1973.

10 By letter of 11th August, 1978, the solicitors for the Plaintiff wrote to the solicitors for the Defendant in the following terns:- "Dear Sirs, Further to the above our client has instructed us that as the closing day i.e. the 21st July, 1978, has passed they wish to withdraw from this sale.

"You can send a copy of this letter to Mr. Le Courcy and this is to authorise him to return the deposit to your client."

"We would be obliged for any folios etc. that you have to hand."

11 This letter was formally acknowledged on 15th August, 1978, and, by letter of 23rd August, the solicitors for the Defendant wrote to say that their client was quite happy about the planning position and, In the circumstances, waived the special condition number (1) in the contract. They also asked to be furnished with a copy of the Land Commission consent so that they could furnish their requisitions on title. They wrote a further letter on 28th August calling for certain information to enable them to apply for the consent of the Land Commission to the Defendant as required by section 45 of the Land Act, 1965. Notwithstanding their letter of 11th August, the solicitors for the Plaintiff on 31st August replied to the letter of 28th August and furnished the information therein requested and, by the last paragraph of their letter, indicated that the transaction was then proceeding. It is not clear how this letter of 31st August came to be written but it led to the plaintiff discharging his solicitors and retaining his present solicitors who, by letter of 15th September, directed the auctioneers to return the deposit to the Defendant. This was done and confirmed by letter of 18th September to the solicitors for the Defendant who replied threatening proceedings fox specific performance. There was further correspondence but no proceedings for specific performance were instituted by the Defendant and, on 17th May, 1979, the Plaintiff issued a special summons for a declaration that the contract terminated on 31st July, 1978, because full planning permission had not been...