Mount Juliet Properties Ltd v Melcarne Developments Ltd (t/a Walsh Brothers) and Others

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Laffoy
Judgment Date19 June 2013
Neutral Citation[2013] IEHC 286
Date19 June 2013

[2013] IEHC 286

THE HIGH COURT

[No. 11587P/2010]
Mount Juliet Properties Ltd v Melcarne Developments Ltd (t/a Walsh Brothers) & Ors

BETWEEN

MOUNT JULIET PROPERTIES LIMITED
PLAINTIFF

AND

MELCARNE DEVELOPMENTS LIMITED TRADING AS WALSH BROTHERS, CAMPBELL CONROY HICKEY PARTNERSHIP, McCARRICK WOOD LIMITED TRADING AS McCARRICK WOOD CONSULTING ENGINEERS AND HENDRICK RYAN & ASSOCIATES LIMITED
DEFENDANTS

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ART 8

ARBITRATION ACT 2010 S6

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ART 7

RSC O.99 r1A

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ART 8(1)

ARBITRATION ACT 2010 SCHED 1

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION OPTION I ART 7

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION ART 8(2)

ARBITRATION ACT 2010 S11

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION OPTION I ART 7(6)

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION 1985 ART 7(2)

BINDER INTERNATIONAL COMMERCIAL ARBITRATION & CONCILIATION IN UNCITRAL MODEL LAW JURISDICTIONS 3ED 2010 PARA 2.32

BINDER INTERNATIONAL COMMERCIAL ARBITRATION & CONCILIATION IN UNCITRAL MODEL LAW JURISDICTIONS 3ED 2010 PARA 2.073

BARNMORE DEMOLITION & CIVIL ENGINEERING LTD v ALANDALE LOGISTICS LTD & ORS UNREP FEENEY 11.11.2010 2010 IEHC 544

P ELLIOT & CO LTD (IN RECEIVERSHIP & IN LIQUIDATION) v FCC ELLIOT CONSTRUCTION LTD UNREP MAC EOCHAIDH 28.8.2012 2012/37/11030 2012 IEHC 361

ARBITRATION ACT 1996 S6(2) (UK)

ST JOHN SUTTON & ORS RUSSELL ON ARBITRATION 23ED 2007 PARA 2.044

ST JOHN SUTTON & ORS RUSSELL ON ARBITRATION 23ED 2007 PARA 2.046

ST JOHN SUTTON & ORS RUSSELL ON ARBITRATION 23ED 2007 PARA 2.048

ST JOHN SUTTON & ORS RUSSELL ON ARBITRATION 23ED 2007 PARA 2.049

LEO LABORATORIES LTD v CROMPTON BV (ORSE WITCO BV) 2005 2 IR 225 2005/36/7495 2005 IESC 31

KASTRUP TRAE-ALUVINDUET A/S v ALUWOOD CONCEPTS LTD UNREP MACMENAMIN 13.11.2009 2009/29/7254 2009 IEHC 577

SWEENEY v MULCAHY 1993 ILRM 289 1993/5/1452

ARBITRATION ACT 1980 S5

ARBITRATION ACT 1980 S2

SEA TRADE MARITIME CORP v HELLENIC MUTUAL WAR RISKS ASSOCIATION (BERMUDA) LTD (THE ATHENA) (NO 2) 2007 1 AER (COMM) 183 2007 1 LLOYDS 280 2006 2 CLC 710 2007 BUS LR D5 2006 EWHC 2530 (COMM)

FUREY v LURGAN-VILLE CONSTRUCTION CO LTD & ORS 2012 ILRM 110 2012/15/4437 2012 IESC 38

ARBITRATION ACT 1950 S4 (UK)

MANSFIELD ARBITRATION ACT 2010 & MODEL LAW: A COMMENTARY 2012 117

Arbitration law- Contract law- Development- Incorporation- Breach of duty- Breach of contract- Delay- Estoppel- Model Law- Whether arbitration clause had been imported by reference to the contract

Facts: The proceedings related to the development of ten residential dwelling houses where the plaintiff was the developer and the third defendant had provided mechanical and electrical engineering services, whilst the fourth defendant had provided structural engineering services. The plaintiff had brought proceedings alleging loss, damage and breach of contract and breach of duty against the defendants for their failure to carry out their obligations. The third defendant sought to refer the proceedings to Arbitration. The Court considered whether the arbitration clause in the Agreement had been incorporated by reference to the contract between the plaintiff and the fourth defendant or the plaintiff and the third defendant. The plaintiff submitted inter alia that the correspondence fell short of a stipulation that the standard conditions were to govern the contractual agreement. The question arose as to delay and/ or estoppel so as to preclude the reliefs sought. The Court considered the application of incorporation principles to the third and fourth defendants separately.

Held by Laffoy J. that the Court would make orders sought by the third and fourth defendant. There was no basis for finding that the third defendant was precluded by delay or estopped from bringing its application. There was no basis as regards the fourth defendant for the allegation of estoppel. There was an arbitration agreement between the third defendant and the plaintiff and also between the fourth defendant and the plaintiff.

1

Judgment of Ms. Justice Laffoy delivered on 19th day of June, 2013.

The applications in the context of the proceedings and procedural background
2

1. These proceedings have arisen out of the development of part of the Mount Juliet Estate in County Kilkenny, specifically, the development from around 2006 of ten residential dwelling houses on the site of the old Equestrian Centre, which were to be known as "The Walled Garden Lodges". The development took place and the ten houses were built and sold between November 2006 and June 2008.

3

2. The involvement of the parties to the proceedings in that development was as follows:

4

(a) The plaintiff was the developer, in the sense that it was associated with the company which was the legal owner of the land, Mount Juliet, it applied for and obtained planning permission for the development, it retained the defendants who were involved in the development and it was the vendor of the houses to the purchasers thereof.

5

(b) The first defendant was engaged as a building contractor to carry out the development. The Court was informed that the first defendant is now in liquidation.

6

(c) The second defendant, a firm of architects which had been retained in and around the late 1990s to act as the plaintiff's retained architect for various projects on the Mount Juliet Eestate, was retained to design and procure the construction of the development. The plaintiff's position is that the other defendants were retained on the recommendation of the second defendant.

7

(d) The third defendant, which the evidence before the Court indicates has been in creditors' voluntary liquidation since 21 st September, 2011 although this is not obvious from the title to the proceedings, which traded as consulting engineers, was retained by the plaintiff to provide mechanical and electrical engineering services for the development.

8

(e) The fourth defendant, which trades as consulting structural engineers, was retained by the plaintiff to provide structural engineering services in relation to the development.

9

3. These proceedings were initiated by a plenary summons which issued on 17 th December, 2010. The primary relief sought in the general endorsement of claim on the plenary summons is a declaration that the defendants and each of them are obliged, jointly and severally, to fully indemnify the plaintiff in respect of all claims, damages, losses, costs, expenses, and outlay of every nature whatsoever, together with continuing interest thereon, that the plaintiff, as vendor, has suffered or will hereafter suffer arising from loss, damage, inconvenience and expense suffered by the plaintiff and by the purchasers of the ten dwellings in the development and claims made by the purchasers against the plaintiff arising therefrom. In addition, the plaintiff claims damages for negligence, breach of duty, breach of contract and injury to reputation and damages for misrepresentation and negligent misstatement. Damages are also claimed against the four defendants individually. For instance, in the case of the third defendant, damages are claimed in respect of loss suffered by the plaintiff as a result of the breach of contract and/or negligence and/or breach of duty of that defendant arising out of its failure to carry out its obligations "as Mechanical and Electrical Engineers". As counsel for the third defendant pointed out, the basis of the contract is not stated.

10

4. An alternative claim in these proceedings is for damages in relation to dwelling houses Nos. 1, 3, 4, 5, 6, 7, 8 and 10 of the development on the basis that the liability of the defendants and each of them in respect of properties No. 2 and No. 9 is the subject of separate proceedings, namely:

11

(a) Proceedings by Jon 0'Sullivan and another, as plaintiffs, and the plaintiff, the second defendant, and the third defendant, as defendants, and in which the first defendant and the fourth defendant were joined as third parties (the O'Sullivan Proceedings), which were instituted in this Court under Record No. 2008 No. 7476P.

12

(b) Proceedings by John J. Enright and another, as plaintiffs, and the plaintiff and Mount Juliet, as defendants, in which the first defendant, the second defendant, the third defendant and the fourth defendant have been joined as third parties (the Enright Proceedings), which were instituted in this Court under Record No. 2009 No. 2444P.

13

As between the plaintiffs therein and the plaintiff in these proceedings, the O'Sullivan Proceedings and the Enright Proceedings have been settled. However, the issues between the defendants inter se and between the defendants and the third parties are proceeding.

14

5. On 8 th February, 2011, the second defendant served notice of contribution and indemnity in these proceedings on the first defendant, the third defendant and the fourth defendant. On 9 th March, 2011, the first defendant served a notice of contribution and indemnity in these proceedings on the second defendant, the third defendant and the fourth defendant.

15

6. On 21 st February, 2011, the fourth defendant entered an appearance in these proceedings. No statement of claim has been delivered by the plaintiff in these proceedings.

16

7. The next step in these proceedings taken by the fourth defendant was to issue the application which is the subject of this judgment on 22 nd June, 2012. In the notice of motion the fourth defendant sought an order pursuant to Article 8 of the Model Law and the Arbitration Act 2010 (the Act of 2010) referring the plaintiff and the fourth defendant in these proceedings to arbitration on the grounds that the...

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4 cases
  • Ocean Point Development Company Ltd ((in Receivership)) v Patterson Bannon Architects Ltd
    • Ireland
    • High Court
    • 10 May 2019
    ...is the decision of the High Court (Laffoy J.) in Mount Juliet Properties Limited v. Melcarne Developments (t/a Walsh Brothers) & Others [2013] IEHC 286 (‘ Mount Juliet’). This was another case arising out of a dispute under a building contract. Proceedings were brought by the plaintiff, th......
  • Coen v Doyle
    • Ireland
    • High Court
    • 25 March 2021
    ...derive any support from the judgment of Laffoy J. in the High Court in Mount Juliet Properties Ltd v. Melcarne Developments Ltd & ors [2013] IEHC 286 (“ Mount Juliet”). In that case, the court found that certain standard conditions of engagement published by the Institution of Engineers of ......
  • Franmer Developments Ltd v L&M Keating Ltd and Others
    • Ireland
    • High Court
    • 4 June 2014
    ...2012 CLAUSE 38(B) MOUNT JULIET PROPERTIES LTD v MELCARNE DEVELOPMENTS LTD (T/A WALSH BROTHERS) & ORS UNREP LAFFOY 19.6.2013 2013/35/10570 2013 IEHC 286 Arbitration – Building Works – Contract – Damages – Arbitration Act 2010 s. 6 – UNCITRAL Model Law Article 8. 2012/7902P - Ryan - High - 4/......
  • Lisheen Mine v Mullock and Sons Ltd and Another
    • Ireland
    • High Court
    • 12 January 2015
    ...J. in G. Burns Ltd v. Grange Construction & Roofing Company Ltd [2013] IEHC 284 and Mount Juliet Properties Ltd v. Melcarne Developments [2013] IEHC 286. 129 129. I also note that the position in the UK was set out by Waller LJ in the Court of Appeal in Al Naimi v. Islamic Press Agency Inc ......

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