McGreal v Whyte
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] IECA 365 |
| Date | 06 December 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 365 Appeal No. 2015/506 |
[2016] IECA 365
THE COURT OF APPEAL
Irvine J.
Peart J.
Irvine J.
Stewart J.
Neutral Citation Number: [2016] IECA 365
Appeal No. 2015/506
Specific performance – Property – Bound to fail – Appellant seeking to appeal against decision of High Court – Whether High Court judge erred in law when he decided to exercise the Court’s inherent jurisdiction to dismiss the appellant’s claim as one which was bound to fail
Facts: The plaintiff/appellant, Mr McGreal, appealed to the Court of Appeal against the order of the High Court (Hedigan J) of 3rd July, 2015, whereby, pursuant the Court’s inherent jurisdiction, he dismissed Mr McGreal’s claim for specific performance against the defendant/respondent, Ms Whyte, on the ground that it was bound to fail. By order dated 19th February, 2016, Finlay Geoghegan J directed that four issues be considered by the court on the appeal: (1) was the trial judge correct in his decision to dismiss the claim as bound to fail upon the grounds that Ms Whyte’s agreement in respect of the purchase of certain property was with a limited liability company and not with Mr. McGreal personally; (2) if the trial judge was incorrect in so ruling, was Ms Whyte entitled to the order made on the grounds that Mr McGreal’s claim was bound to fail for want of any note or memorandum of an agreement between the parties concerning the sale of the property; (3) whether Ms Whyte was entitled to an order dismissing the claim in circumstances where Mr McGreal had claimed an entitlement to enforce the contract in reliance upon her acts of part performance; and (4) whether Ms Whyte was entitled to the relief sought in circumstances where the undisputed evidence before the High Court was that it was Mr McGreal who had withdrawn from the proposed contract and his solicitor who had demanded the return of the contract documents.
Held by Irvine J that, having considered the evidence that was before the High Court judge and such additional evidence as was admitted on this appeal, she was satisfied that Mr McGreal’s appeal must be dismissed. Irvine J held that the High Court judge did not err in law when he decided to exercise the Court’s inherent jurisdiction to dismiss his claim as one which is bound to fail. The continued existence of those proceedings could not, in her view, be justified. The claim which Mr McGreal sought to advance was held to be one which was utterly undermined by the facts and circumstances to be found in documents and other correspondence authored by a solicitor in accordance with his instructions. Irvine J held that it was untenable, in light of the documentary evidence, for Mr McGreal to argue that his claim, which depends upon him establishing that, prior to the 3rd August, 2007, a binding contract for the sale of the property was concluded between himself and Ms Whyte, was not one which was bound to fail.
Irvine J held that she would dismiss the appeal.
Appeal dismissed.
This is Mr. McGreal's appeal against the order of the High Court (Hedigan J.) of 3rd July, 2015, whereby, pursuant the Court's inherent jurisdiction, he dismissed Mr. McGreal's claim for specific performance against the defendant (Ms. Whyte’) on the ground that it was bound to fail. Accordingly, core to this appeal are the circumstances in which a court may grant this relatively Draconian relief.
By order dated 19th February, 2016, Finlay Geoghegan J. directed that four issues be considered by the court on the appeal and these can be summarised as follows:–
(1) Was the trial judge correct in his decision to dismiss the claim as bound to fail upon the grounds that Ms. Whyte's agreement in respect of the purchase of certain property was with a limited liability company and not with Mr. McGreal personally;
(2) if the trial judge was incorrect in so ruling, was Ms. Whyte entitled to the order made on the grounds that Mr. McGreal's claim was bound to fail for want of any note or memorandum of an agreement between the parties concerning the sale of the property;
(3) whether Ms. Whyte was entitled to an order dismissing the claim in circumstances where Mr. McGreal had claimed an entitlement to enforce the contract in reliance upon her acts of part performance, and
(4) whether Ms. Whyte was entitled to the relief sought in circumstances where the undisputed evidence before the High Court was that it was Mr. McGreal who had withdrawn from the proposed contract and his solicitor who had demanded the return of the contract documents.
By plenary summons dated 29th June, 2013, Mr. McGreal commenced specific performance proceedings against Ms. Whyte. In his statement of claim he maintains that in August, 2007 she agreed to purchase from him personally certain premises at Carra Close, Westport, Co. Mayo (‘the property’) for a sum of €511,615.75 and that on the 2nd August, 2007, ‘the agreed deposit/contract payment was received’. That payment, in the sum of €5,000, was made by cheque drawn in favour of Mr. McGreal.
Mr. McGreal claims that it was an express or in the alternative an implied term of the aforementioned agreement that once he had completed certain structural alterations to the property, as had been requested by and agreed with Ms. Whyte, she would pay the balance due on foot of the contract. He claims that while he, in accordance with his obligations under the agreement, duly carried out the said works, Ms. Whyte failed in her obligations to complete the purchase. In such circumstances Mr. McGreal claims he is entitled to an order for specific performance of the said agreement and/or in the alternative an order for damages in lieu thereof.
In his reply to the defendant's letter for particulars of the 10th October 2013, this is how he described the contract upon which he seeks to rely:
‘Para 9:
This is a matter of evidence at the hearing. Without prejudice to the foregoing, the offer was made by the defendant to the estate agent and accepted by the plaintiff upon condition that a contract deposit was paid to him together with additional undertakings to complete certain elements of the construction work being given by the defendant. This offer, acceptance, consideration and performance constitute the legal binding and enforceable agreement entered into between the parties as a matter of law.’
Ms. Whyte in her defence and counter claim delivered on the 22nd May, 2014, denies any concluded contract with Mr. McGreal and pleads that insofar as there was any intended contract the same was to be between herself and a limited liability company, McGreal Construction Limited (‘the company’), whereof Mr. McGreal was a director. She also pleads repudiation by Mr. McGreal on his own behalf or as agent on behalf of the company of any contract concerning the sale of the property. Ms. Whyte, in her defence, put Mr. McGreal on full proof of the existence of any enforceable agreement and any memoranda to be relied upon by him in that regard. In addition she relies upon the doctrine of laches.
In her counterclaim Ms. Whyte claimed that in the event of the court accepting the plaintiff's claim to the effect that a binding agreement had been concluded between herself and Mr. McGreal, she would seek to set off against any award of damages he might recover the money which she had expended on the property. It was conceded in the High Court and in this court that her counterclaim would fall away if she established that there had been no concluded agreement between herself and Mr. McGreal.
By notice of motion dated 7th January, 2015, Ms. Whyte sought an order pursuant to Ord. 19 r. 28 of the Rules of the Superior Courts, or alternatively an order under the Court's inherent jurisdiction, striking out Mr. McGreal's claim on the grounds that it disclosed no reasonable cause of action or alternatively could be stated to be frivolous, vexatious, or bound to fail. She also sought to invoke the court's inherent jurisdiction to dismiss the claim on the grounds of inordinate and inexcusable delay.
In her grounding affidavit Ms. Whyte put before the Court a substantial number of documents concerning her dealings with Mr. McGreal, his estate agent, Ms. Needham of Douglas Newman Good, and McGreal Contractors Limited for the purpose of seeking to establish beyond doubt that she had not entered into any concluded agreement with Mr. McGreal and that at all times, formal negotiations concerning the proposed sale of the property had taken place between herself as potential purchaser and the company, as the intended vendor. In particular she relied upon a Building Agreement / Contract for Sale concerning the property forwarded by Helena Boylan and Company, the solicitors acting on behalf of the company to her solicitor, Ms. Jackie Durcan, under cover of a letter dated 20th August, 2007. A complete copy of that agreement has never been produced by Mr. McGreal. Two pages of it were missing. However, Mr. McGreal accepts that the parties to that proposed agreement were Ms. Whyte as proposed purchaser/employer and the Company as proposed vendor/ contractor. Ms. Whyte also exhibited an exchange of correspondence between the said solicitors concerning the intended purchase, all of which post dates the agreement relied upon by Mr. McGreal. Ms. Whyte claims that this correspondence provides conclusive evidence:-
1. that there could never have been any binding agreement for the sale of the property between herself and Mr. McGreal personally. The proposed contract was to be with the company as vendor;
2. that no agreement was ever concluded. All of the correspondence made clear that there could be no agreement until such time as contracts were...
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