Mulhall v Haren

JudgeMr. Justice Keane
Judgment Date01 January 1981
Neutral Citation1981 WJSC-HC 985
CourtHigh Court
Docket NumberNo. 7583 P/1978,[1978 No. 7583P.]
Date01 January 1981

1981 WJSC-HC 985


No. 7583 P/1978





Judgment of Mr. Justice Keane delivered the 4th day of December 1979.


The plaintiffs who live at 89 Patrician Villas, Stillorgan, County Dublin were thinking of moving house in the Summer of 1978. They eventually saw a house with which they were happy, i.e. 131, Upper Kilmacud Road, Stillorgan, County Dublin. This house was owned jointly by the defendants. It was on the books of a firm of estate agents called Hibernian Auctioneers Limited. The plaintiffs made an offer of £24,000 to Mr. O'Reilly of that firm. He communicated this to his clients, who wanted £25,000. Ultimately they agreed to accept £24,500 and the plaintiffs informed Mr. O'Reilly on the 10th July that this was acceptable to them. They agreed to a deposit of 25% of which £750 was to be paid immediately.


The plaintiffs signed a contract for the sale of their own house on the 28th August and as that contract provided for a closing date of September 29th, the plaintiffs suggested a closing date of September 22nd for the purchase of the defendants house.


Both parties envisaged that the transaction would be completed in the normal way by Solicitors acting on their behalf and they each instructed firms of solicitors. On the 20th July, Mr. McCarroll on behalf of the plaintiffs wrote to Hibernian Auctioneers Limited as follows:-

"Re: 131 Upper Kilmacud Road.

Dear Sirs,

We are acting for Mrs. Mulhall in the proposed purchase of the above property for the sum of £24,500 and we have received a Bank Draft in your favour for £750 and as the sale is subject to contract, perhaps you would send us the contract.

Yours faithfully."


On the same day, Mr. McCarroll wrote to Mrs Mulhall as follows:-

"Dear Mrs. Mulhall,

We duly received yours of the 19th instant and by the same post we received a letter from the Bank of Ireland sending us Bank Draft for £750 in favour of Hibernian Auctioneers, 20 Main Street, Clondalkin, County Dublin, but needless to remark we will not part with this Bank Draft until we get the Contract for Sale and as soon as we do we will contact you as it will be necessary for you to sign the Contract.

Yours faithfully."


On the 21st July, Mr. McCarroll wrote again to Hibernian Auctioneers as follows:-

"Re: 131 Upper Kilmacud Road, re: Mrs Valerie Mulhall.

Dear Sirs,

With further reference to the above, we now enclose herewith Bank Draft for £750, which of course, is subject to contract, and we would be obliged if you would let us have the contract immediately.

Yours faithfully."


On the 26th July, Mr. O'Reilly wrote to Mr. McCarroll as follows:-

"Re: Your Client Mrs Valerie Mulhall. Premises: 131 Upper Kilmacud Road, Stillorgan, County Dublin.

Dear Sirs,

We acknowledge yours of 21st instant with Bank Draft enclosed in the sum of £750 as deposit on the above on behalf of your client Mrs Valerie Mulhall. We enclose receipt for same. We have written to the Vendor's Solicitors and no doubt you shall be hearing from them shortly.

Thanking you.

Yours faithfully."


The receipt enclosed was as follows:

"Received from Mrs. Valerie Mulhall the sum of £750 as deposit on property at 131 Upper Kilmacud Road, Stillorgan, Co. Dublin. Full purchase price £24,500.

It is agreed that deposit would be refunded in full in event of cancellation due to inability to obtain loan or non-completion of sale due to any defect in lease on said premises."


On the 26th July, Mr. O'Reilly wrote to Messrs M.B. O'Cleirigh and Company, the Solicitors for the defendants, as follows:-

"Re: Your clients, Mr and Mrs John Haren Sale: 131 Upper Kilmacud Road, Stillorgan, County Dublin.

Dear Sirs,

On the instructions of Mr. Haren, we would confirm having sold the above property for a sum of £24,500. This sum includes floor coverings, window coverings and light fittings excepting diningroom light fittings.

The Purchasers are Mr and Mrs. Mulhall, 89, Patrician Villas, Stillorgan, who are represented by J.H. McCarroll and Company, Solicitors, 4 Church Street, Wicklow who awaits contract. We would also confirm having received a booking deposit of £750 from Mrs. Mulhall through her Solicitor. Our fees agreed with Mr. Haren are £490.

We trust you will now be able to proceed in this matter.

Yours faithfully."


This letter was acknowledged by Messrs. O'Cleirigh and Company on 3rd August and they wrote to Messrs McCarroll and Company on the 15th August, as follows:

"Dear Sirs,

Haren and Another to Mulhall and Another. 131 Upper Kilmacud Road, Stillorgan, County Dublin.

We understand that you are acting for the Purchasers of the above premises and we enclose herewith contract in duplicate together with vouching documents for completion by your clients.

A holding deposit of £750 has already been paid to Hibernian Auctioneers Limited and the balance of the deposit is £5,375.

As you will see from the contract, we have inserted the 22nd September as a completion date. However, the final date for handing over possession is to be agreed between our respective clients. Please let us hear from you at your early convenience.

Yours faithfully."


The contract was in the standard form of the Incorporated Law Society of Ireland and presented no unusual features. It was not in fact returned by Mr. McCarroll and on September 6th, Messrs O'Cleirigh and Company wrote him a reminder. The reason it was not returned was that, while Mr. McCarroll was satisfied that the necessary loan finance would be available to his clients to complete the purchase, they were not actually in funds. In order to save time, Mr. McCarroll sent requisitions on title together with a draft Assignment to Messrs O'Cleirigh and Company on the 6th September, 1978. His clients having been put in funds, he wrote again on the 20th September, enclosing the contract executed by Mr and Mrs Mulhall together with a bank draft in favour of Messrs O'Cleirigh and Company for £5,375 (the balance of the deposit).


On the 27th September, Messrs O'Cleirigh wrote to Messrs McCarroll stating that they had written to their clients regarding the signing of the contract. They wrote in those terms, because Mrs Haren had informed them that certain marital problems which she was having with her husband had come to a head and she was now unhappy about proceeding with the sale. Mr. McCarroll, having heard nothing further, became naturally concerned with the lack of progress and, having been unable to make contact with Mr. Lane who was the solicitor in Messrs O'Cleirigh and Company dealing with the matter, advised his client to call directly on Mrs Haren to find out what was holding up matters. Mrs. Mulhall did so and was told by Mrs Haren that she thought the deal was off. Mr. McCarroll wrote on the 5th October to Messrs O'Cleirigh and Company expressing his anxiety. There being no reply to his letter, he wrote again on the 11th October, pointing that the purchaser of Mrs. Mulhall's premises was now threatening proceedings unless possession was given. On the 13th October, Messrs O'Cleirigh and Company wrote to Messrs McCarroll and Company informing them that Mrs Haren had instructed a separate solicitor and was not at present prepared to sign the contract. They suggested that Mr. McCarroll should get in touch with her solicitors, Messrs Gerard A. Walsh, Harte and Company. Messrs McCarroll replied on the 16th October, pointing out the difficulties this created and stating their intention, if it arose, of seeking compensation from Mrs. Haren. On the same day, they wrote to Messrs Gerard A. Walsh, Harte and Company informing them of the position and there being no reply to that letter, wrote again on the 20th October, threatening proceedings. They wrote in similar terms on the 27th October, but that letter appears to have crossed a letter from Messrs Gerard A. Walsh, Harte and Company in which they indicated that they were awaiting details of the transaction from Messrs O'Cleirigh and Company in order to enable them to advise their client as to whether she was in fact under any liability in contract to the plaintiffs. They wrote again on the 2nd November, stating that they had not received any further instructions and were not in a position to accept service of any proceedings. They suggested that Mrs McCarroll should get in touch again with Mr. Lane of Messrs O'Cleirigh and Company, which he did on the 6th November 1978. On the 13th November, 1978, Messrs O'Cleirigh and Company wrote confirming that as far as Mrs Haren was concerned, their instructions were withdrawn. They made it clear that as far as Mr. Haren was concerned, he was still prepared to proceed with the transaction.


The matter did not proceed any further in correspondence, but some time early in the following year, the plaintiffs met Mr. Haren in a licensed premises in Stillorgan. When they enquired what the difficulty was, he said that, as it happened, his solicitor, Mr. Lane, was also on the premises. He brought Mr. Lane over and introduced him to Mr and Mrs. Mulhall. There was some dispute as to the conversation that followed. Mr and Mrs Mulhall are under the impression that Mr. Lane told them that Mrs Haren had now signed the contract and that it had been posted to their solicitor. Mr. Lane says that he told them that he had been informed by Mrs Haren that she was now prepared to sign the contract and was sending it to him for transmission to Mr. McCarroll. I do not attach any significance to this difference in memory: I have no doubt that all concerned were honestly trying to give their recollection of the conversation to the best of their ability, but it does not touch on any issue which has to be resolved in these proceedings. In fact, the present proceedings for specific performance had already...

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