Mitchell and Another v Mulvey Developments and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 06 February 2014
• Neutral Citation: [2014] IEHC 37
• Docket Number: [2009 No. 4373 P]
• Court: High Court
• Date: 06 February 2014

BETWEEN

MICHAEL MITCHELL AND MARGOT MITCHELL

PLAINTIFFS

AND

MULVEY DEVELOPMENTS LIMITED, STEPHEN GARVEY PRACTISING UNDER THE STYLE AND TITLE OF ADEPT CONSULTING ENGINEERS (AND BY ORDER THOMAS MULVEY, ROBERT MULVEY, DESIGN DEVELOPMENT LIMITED AND NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED) (No.2)

DEFENDANTS

BETWEEN

MARY BRETT

PLAINTIFF

AND

MULVEY DEVELOPMENTS LIMITED, STEPHEN GARVEY PRACTISING UNDER THE STYLE AND TITLE OF ADEPT CONSULTING ENGINEERS (AND BY ORDER THOMAS MULVEY, ROBERT MULVEY, DESIGN DEVELOPMENT LIMITED AND NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED)

DEFENDANTS

BETWEEN

CIARÁN ADAMS AND NIAMH DEASY

PLAINTIFFS

AND

MULVEY DEVELOPMENTS LIMITED, STEPHEN GARVEY PRACTISING UNDER THE STYLE AND TITLE OF ADEPT CONSULTING ENGINEERS (AND BY ORDER THOMAS MULVEY, ROBERT MULVEY, DESIGN DEVELOPMENT LIMITED AND NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED)

DEFENDANTS

[2014] IEHC 37

[2009 No. 4373 P]

[2009 4370 P]

[2009 No. 7559 P]

THE HIGH COURT

THE HIGH COURT

THE HIGH COURT

Property - Housing development - Poor building practices - Breaches of Building Regulations - Negligence - Breach of contract - Judgment entered in default - Assessment of damages

The plaintiffs in these proceedings all purchased properties in a housing complex located in Sligo. The plaintiffs then faced ‘abysmal building practices’ in addition to ‘massive’ breaches of relevant building regulation. This meant that the plaintiffs were left with unmarketable, and in some instances, almost uninhabitable properties. This action was against the first defendant, Mulvey Developments Limited; the second defendant, Stephen Garvey, practising under the style and title of Adept Consulting Engineers; the third defendant, Thomas Mulvey; and the fifth defendant, Design Developments Limited. As none of them filed a defence, judgment was entered in default against them. The action against the fourth defendant, Robert Mulvey, was dismissed as he had no part in the construction of the properties. As for the sixth defendant, National House Building Guarantee Company Limited, it was held that the actions against them were pending the determination of the claim against the other defendants. Held by Hogan J., as judgment had been entered against the four defendants, the task of the Court was the assessment of damages.

The Court noted that the Mitchells purchased a five bedroom property in the housing complex. A major defect culminated in the ceiling of a room collapsing twice due to water damage. A further report, from engineer Mr. Conmy, identified that a continuous seepage of water had corroded the beam supporting the rear wall of the property; that the block and plaster work were damaged due to moisture ingress; that water was coming into the upstairs bedrooms through the chimneys; and that condensation was forming in the property. The report concluded that the house would be unfit for habitation in ‘12-15 months’ and that the reconstruction work would take a year. Ms. Brett experienced similar issues including a serious leak in the kitchen, again the result of poor building practices. Ms. Brett”s engineer reported that the house was constructed on a ‘loose sandy type material’ and that inadequate damp proofing, poor plaster work and an absence of insulation revealed ‘whole scale violations of the Building Regulations’. Similar experiences were suffered by Mr. Adams and Ms. Deasy who purchased a four bedroom property in the complex. The evidence provided by structural engineer Mr. O”Connell identified that the issues with the property were so fundamental as to warrant inspection of its foundations, which were estimated as being made up of 40% inappropriate fill material.

Hogan J. calculated the damages at €424,090 in favour of the Mitchells, granting €180,000 for ‘anxiety, distress, upset and inconvenience as a result of negligence and breach of contract’, €202,090 for repairs, €18,000 for past repairs and €24,000 for the costs of moving out of the house during the repair period. Hogan J. calculated the damages to be awarded to Ms. Brett at €250,175, granting €20,000 for the period of upset and €100,000 for a five year period of ‘distress, anxiety, upset and disappointment’, €120,175 for repairs, €5000 for past repairs and €5,000 for rent during the repair period. The damages to be awarded to Mr. Adams and Ms. Deasy were calculated at €424,805. This was made up of €160,000 for ‘anxiety, distress, upset and inconvenience’, €12,000 for rent during the repair period, €5,000 for past repairs as well as €247,805 for the repair costs.

Mr. Justice Hogan

JUDGMENT of Mr. Justice Hogan delivered on the 6th day of February, 2014

1 The development of a new housing complex at Strand Hill, County Sligo between 2004 and 2005 seems to have attracted much attention at the time. There must have been many who considered that the purchase of such a house at this development would represent an excellent choice as a family home. The properties were located about seven kilometres outside Sligo town and many of them had balconies overlooking Sligo Bay with its stunning scenery. To the east lay the equally stunning vista presented by Knocknarea mountain, while to the west lay the Ox mountains, Balisodare Bay and Culleennamore strand.

2 The plaintiffs in these proceedings all purchased these properties in this belief and expectation. As the details of this case will chronicle, these expectations were all too quickly dashed. Instead, as the plaintiffs have found out to their cost and dismay, they have been the victims of abysmal building practices and systemic and massive breaches of the relevant Building Regulations. This has meant that the plaintiffs have been left with properties which, as matters stand, are unmarketable and, in some instances at least, must be close to being uninhabitable.

3 The present action is as against the first defendant (Mulvey Development Ltd.), the second defendant (Stephen Garvey, practising under the style and title of Adept Consulting Engineers), the third defendant (Thomas Mulvey) and the fifth defendant (Design Development Services Ltd.). While an appearance was entered on behalf of Mr. Garvey on 30th May 2011, none of these other defendants have filed an appearance. None of them have filed a defence. Judgment in default of appearance was entered against Mulvey Developments Ltd. and Thomas Mulvey on 11th April 2011. A similar default judgment was marked against Design Development Ltd. on 23rd May 2011. Judgment in default of defence against Mr. Garvey was given by me on 13th May 2013.

4 By decision of this court delivered on 11th March 2013, the action against the fourth defendant Robert Mulvey was dismissed, since he was merely one of the vendors of the land on which the properties stand. The evidence established that he had no role in the construction of the properties.

5 There remains the claim against the sixth defendant, National House Building Guarantee Company Ltd. (‘Homebond’) whereby it is sued pursuant to that guarantee which it gave under the Home Bond Agreement. Under that the terms of that agreement Homebond agreed to repair defectively constructed private dwellings in the event that one its members defaulted on its obligation to effect such repairs. Although the agreement contained an arbitration clause, in a reserved judgment delivered by me on 20th December 2012 I held that Homebond was precluded by its own conduct from invoking that clause: see Mitchell v. Mulvey Developments Ltd. [2012] IEHC 561.

6 While Homebond remain in the proceedings, it has been agreed that the actions against them will stand over pending the determination of the claim against Mulvey Development, Mr. Thomas Mulvey, Mr. Garvey and Design Developments Ltd. Since, as we have seen default judgments have been marked against all of these particular defendants, my task is simply to assess damages. I should further record that some six other similar claims brought by other residents of the estate stand adjourned pending the outcome of the assessment of damages in the present three sample cases.

7 To complete this picture it should be also recorded that Design Development Services Ltd. was placed into liquidation by its members in September 2013 and a liquidator was then appointed. I have been further informed that an issue either has or may arise with regard to the repudiation of the Mr. Garvey”s professional indemnity insurance by the insurer.

8 We can now proceed to consider the individual claims of the three separate sets of plaintiffs.

Part II: The claim of the Mitchells

9 Michael and Margo Mitchell bought a five bed room property at 8 The Waves, Strandhill in May 2005. Since then they have had to contend with a multitude of defects which I can only endeavour inadequately to summarise in this judgment.

10 Within a month of moving into the property the Mitchells noted water staining in the ceiling in the playroom. The developers promised to attend to this and it was decided that the balcony slabs should be removed and replaced with tiles. The object of this was to prevent water getting into the patio doors on the balcony and down to the playroom below. These repairs were not immediately attend to and yet worse was to befall them.

11 On a rainy Sunday afternoon in September, 2005 Ms. Mitchell was alerted by the cries of the children that it was raining in the playroom. It transpired that water was streaming through the playroom ceiling and down through the downlights. This required the emergency evacuation of the house and later that evening the plasterboard on the playroom ceiling collapsed. The ceiling was repaired in December 2005 and the balcony was then tiled.

12 Yet the problems continued, apparently unabated. The tiling was replaced twice, but on another rainy Sunday in November 2006 the playroom ceiling...