Monica Kiely (nee Phelan) v Ronald Delaney and Patricia
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly |
| Judgment Date | 10 July 2012 |
| Neutral Citation | [2012] IESC 41 |
| Court | Supreme Court |
| Docket Number | Appeal Number 134/2008 |
| Date | 10 July 2012 |
[2012] IESC 41
THE SUPREME COURT
Fennelly J.
O'Donnell J.
McKechnie J.
Between:
- and -
LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 18
VENDOR & PURCHASER ACT 1874
LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 33
WYLIE IRISH CONVEYANCING LAW 2ED 1996 PARA 15.30
WYLIE IRISH CONVEYANCING LAW 2ED 1996 PARA 15.28
LYONS v THOMAS 1986 IR 666 1986/3/1134
SELKIRK v ROMAR INVESTMENTS LTD 1963 1 WLR 1415 1963 3 AER 994
WILLIAMS & ANOR v KENNEDY UNREP SUPREME 19.7.1993 1998/34/13323
WYLIE IRISH CONVEYANCING LAW 2ED 1996 PARA 15.31
BAINES v TWEDDLE 1959 CH 679 1959 3 WLR 291 1959 2 AER 724
JACKSON & HADEN'S CONTRACT, IN RE 1906 1 CH 412
KENNEDY v WRENNE 1981 ILRM 81 1981/5/814
ASHBURNER v SEWELL 1891 3 CH 405
Property – Sale of land – Vendor & purchaser – Contract for sale – Whether contract had been properly rescinded – Law Society of Ireland General Conditions of Sale (2001 edition)
Facts: The appellant held title to a plot of land (‘the plot’) in Dublin. The plot was put up for sale at auction in 2002, and before the auction confirmation was made by the auctioneer that access to the land was full. This confirmation was re-affirmed in reply to a specific query by the respondents” representative. A contract of sale was then agreed between the parties and a deposit paid.
Following investigation of the title, it transpired a right of way to the plot was in fact insufficient due to the manner in which the appellant”s predecessor of title had divided the plot and a neighbouring plot he had also held. After a long period of discussions including arbitration in an attempt to resolve the matter, the appellant sought to claim the right of way existed and claimed to rescind the contract. The High Court held that, inter alia, the appellant”s conduct was sufficiently unreasonable as to deprive her of the right to rescind. The appellant now sought to appeal claiming the High Court judge had erred in a number of respects.
Held by Fennelly J, that the appeal primarily concerned how to interpret and then apply the Law Society”s General Conditions of Sale. It was a settled point of law that a right of rescission could not be exercised unreasonably by a vender. Lyons v Thomas [1986] IR 666 and Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 applied.
Considering the facts of the current case, the appellant could not be said to have validly claimed the right to rescind. Whilst the original error in the right of way was not her fault, her conduct after the contract to sale was agreed was unreasonable.
In regards to the High Court”s comment regarding the conduct of the appellant”s solicitors, the Court considered the High Court was entitled to make a finding of imprudence on their part. However, the Court found that the test of ‘imprudence’ was not the same as the standard laid out in earlier case law, and this meant the Court would not sustain the High Court”s ruling on this point. In re Jackson and Hayden”s Contract [1906] 1 Ch 412 considered.
The appeal was therefore dismissed, as the finding on the conduct of the appellant was sufficient to determine the appeal.
This is an appeal by the plaintiff appearing in person against the judgment and order of the High Court (MacMenamin J) of 14th March 2008 on foot of a summons pursuant to the Vendor and Purchaser Act. The High Court held that a contract for the sale of lands by her to the defendants had not been duly and properly rescinded.
The case principally concerns the interpretation and application of two conditions in the Law Society of Ireland General Conditions of Sale (2001 edition). The underlying dispute arose from the inability of the appellant (vendor) to convey to the defendants (purchasers) the benefit of a right of way and the appellant's purported rescission of the contract.
The subject lands were a plot registered in folio number 3399 of the Register of Freeholders County of Dublin situate at Bettyville, Ballyboughal, County Dublin. The appellant had bought the lands on 26th September 2000 from one Desmond Byrne, since deceased. An entry on Folio 3399 stated that there was "appurtenant to the land" a right of way for all purposes over certain adjoining land
The lands were sold at auction and the contract signed on 28th May 2002. Mr James Gallagher bid at the auction and signed the contract in trust for the respondents. The auctioneer confirmed prior to the commencement of the auction that access to the land was in order. In response to a specific query made by Mr Gallagher before the contract was signed, this was reiterated and Mr Gallagher was shown a map of the lands on which what was described as a right of way appeared extending via a laneway to the northern boundary of the lands from the public road.
The price was €88,000 and a deposit of €8,500 was paid.
The purchaser's solicitors delivered requisitions on title and also sought a map delineating the right of way. From the map provided it became apparent that the supposed right of way did not extend to the boundary of the land, but stopped short. The explanation was simple. On further investigation, it emerged that the appellant's predecessor of title had subdivided the holding in folio 3399 by selling a plot at the northern side. The right of way had run to that plot and was thus severed from the holding at issue in this appeal. In order to preserve the benefit of the right of way for his own lands then retained, the vendor of that plot ought to have reserved a right of way over the plot then sold, but did not do so. The result was that there was no right of way appurtenant to the lands offered for sale on 28th May 2002 and purchased by the respondents.
There then ensued a period of more than three years prior to the issue of the present proceedings, during which unsuccessful attempts were made to resolve the problem of the absence of the right of way. It is not unfair to say that the appellant changed her position more than once. Her solicitors accepted after some months that a right of way could not be provided and offered to call off the sale. She accepted, or at least acquiesced in, the nomination of an arbitrator to determine the amount by which the price should be reduced to compensate for the absence of the right of way, before asserting nearly three years later that there was a right of way after all and finally purporting to rescind the contract.
The learned High Court judge held, inter alia, that the appellant had lost her contractual right through her unreasonable conduct. Consequently, it is necessary to outline the history of the post-sale conduct of the parties.
On examination of the map provided, the purchasers' solicitors noted on 8th July 2002 that the right of way did not fully extend to the lands but did not know why. In ensuing correspondence, they suggested ways in which the matter might be addressed including a simple deed of grant of the right of way over the intervening property.
It was not until 13th December 2002, after many reminders in correspondence, that the appellant's solicitors explained how the problem had arisen. The intervening plot of ground had, unknown to those solicitors, been sold earlier to a Mr Boylan but no right of way had been reserved. Nonetheless, the appellant (the vendor) had put tarmacadam over the entire way down to the property in ignorance of the exact boundary and had had no difficulty in entering the land along that route. In short, the defect in title was not denied, but access to the land had been enjoyed as if the right of way existed.
The purchasers' solicitors asked that Mr Boylan be approached with a view to having the matter rectified. On 7th March 2003, the appellant's solicitors wrote to say that it had not been possible to negotiate with Mr Boylan, who had made unreasonable demands which the appellant was unable to deliver. They said that their client was "not able to sell the said lands with the benefit of a full legal right of way" and that their client was prepared to refund the deposit. The purchasers' solicitors wished time to consider the matter and asked for permission to have the lands valued. The appellant's solicitors on 14th April 2003 served a seven-day notice to complete.
On 24th April 2003, the purchase' solicitors wrote referring to condition 33 b of the general conditions of the contract, saying that it would cost in the region of €25,000 to provide alternative access to the lands and asking the appellant to abate the price by that amount in which event their client would complete at the reduced price. In default of agreement, they invoked the arbitration clause at general condition 51 of the contract and called for the nomination of three persons as potential arbitrators.
The appellant's solicitors replied on 15th May 2003 rejecting the proposal but offering a reduction of €5,000 to dispose of the matter if the sale were completed within seven days. They would take their client's instructions regarding the appointment of an arbitrator. Around this time, the appellant changed her solicitors. The purchasers' solicitors wrote to the President of the Law Society and Mr John F. Buckley was appointed as arbitrator apparently prior to September 2003. Thereafter Mr Buckley wrote repeatedly from September 2003 to February 2004 to the appellant's solicitors without receiving any reply.
The appellant's solicitors wrote to Mr Buckley on 26th May 2004, saying that they expected to have a Defence to the points of Claim, (which had been sent to the...
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