Point Village Development Ltd v Dunnes Store Unlimited Company

• Jurisdiction: Ireland
• Judge: Mr Justice Mark Sanfey
• Judgment Date: 10 April 2025
• Neutral Citation: [2025] IEHC 212
• Court: High Court
• Docket Number: [Record No. 2018/6540P]

Between

Point Village Development Limited

Plaintiff

and

Dunnes Stores Unlimited Company

Defendant

[2025] IEHC 212

[Record No. 2018/6540P]

THE HIGH COURT

COMMERCIAL

Contempt – Breach of orders – Beyond reasonable doubt – Plaintiff seeking a declaration that the defendant was in contempt of court – Whether the defendant was in contempt

Facts: The plaintiff, Point Village Development Ltd (PVDL), sought a declaration that the defendant, Dunnes Stores Unlimited Company (Dunnes), was in contempt of court arising from its failure to comply with an order of the High Court dated 20 October 2021 as amended by order of the Court of Appeal dated 28 January 2022. The schedule to the notice of motion set out particulars of the alleged breaches of orders 1(a) to (d) of the orders of the High Court as amended by the Court of Appeal. The reliefs sought in the remainder of the notice of motion related to the steps which the plaintiff proposed be taken by the court to address a finding of contempt on the part of Dunnes. The plaintiff focussed on the fact that “the Dunnes Fit Out Plans did not propose to fit out the “anchor unit” as ordered. Instead [Dunnes] proposed to fit out a tiny convenience shop in a small part of the Store” (para. 15 written submissions). The plaintiff characterised this as “breathtakingly cynical. The position adopted was a variation of the very argument the High Court and Court of Appeal had already rejected. In 11 years of litigation about Clause 11, Dunnes had never once articulated the understanding it now advances. On the contrary, up until January 2022 it implicitly acknowledged it was required to fit out the entire Store” (para. 16 written submissions). PVDL argued that Dunnes’ position was contrary to the orders and the development agreement; that it did not propose to fit out the “Anchor Unit” as required by order 1(d), or to fit out the “Store” as defined in the development agreement. It was submitted that the proposed works were not “Fit Out Works” within the meaning of the orders.

Held by the High Court (Sanfey J) that for a court to be satisfied beyond a reasonable doubt that a breach of an order has occurred, it must be clear what compliance with that order would be. In his view, it was not clear what was required for a court to be satisfied beyond a reasonable doubt that compliance with its order had not taken place. The plaintiff asked the Court to infer that the meaning of “anchor unit” is so clear that it can only mean the entire space available to Dunnes. In the absence of a contractual specification or judicial determination to that effect, it could not in Sanfey J’s view be said that this level of clarity could be achieved, so that the order was unambiguous or that the defendant was guilty of contempt beyond a reasonable doubt in failing to fit out the entire area. He held that the requirement for clarity also applied to order 1(a), which required that the Fit Out Plans be “in accordance with the Fit Out Guide...in accordance with clause 11.1 of the Development Agreement”. It seemed to him that the defendant was correct in its assertion that there could be widely differing views as to what might constitute compliance by the defendant with that order. He held that the order was ambiguous such that the defendant could not be in contempt of the order beyond a reasonable doubt for allegedly failing to comply with it.

Sanfey J held that there would be an order dismissing the plaintiff’s application.

Application dismissed.

JUDGMENT ofMr Justice Mark Sanfeydelivered on the 10 ^th day of April 2025.

Introduction

1 . This judgment primarily concerns the application of the plaintiff (or ‘PVDL’) by notice of motion that the defendant (or ‘Dunnes’) is in contempt of an Order of the High Court (Barniville J., as he then was) of 20 October 2021 (‘the High Court Order’) as amended by order of the Court of Appeal (the ‘Court of Appeal Order’) of 28 January 2022 (collectively, ‘the orders’). The notice of motion sets out, inter alia, a lengthy list of orders which it is proposed the court should make, including the imposition of lump sum and daily fines, sequestration of the defendant's assets, and attachment and committal and/or sequestration of the property of four individuals in their capacities as director and/or officer of the defendant, and notably orders directing the defendant to take “such steps as are considered necessary for the purposes of procuring compliance with the Orders.”

2 . I shall deal later in this judgment with the substance of the orders and the manner in which they are alleged to have been breached by the defendant. For present purposes, it is sufficient to say that the orders required the defendant to submit “Fit Out Plans” and carry out certain “Fit Out Works”, as defined in a “Development Agreement” between the parties of 27 February 2008, in relation to an “anchor unit” in the Point Village Centre developed by the plaintiff in the docklands area of Dublin 1.

3 . On 31 March 2022, the defendant delivered Fit Out Plans, which the plaintiff submits “were undoubtedly in breach of the orders. They ran to just seven pages, omitted rudimentary details, and entirely failed to address most requirements of the Fit Out Guide” [para.14 written submissions]. Most significantly, these Fit Out Plans did not propose to address the entire area of the unit acquired by the defendant; it was proposed that the defendant would construct a store which “…covers 2.9% of the total Store floor area. Were it placed on a soccer pitch, the retail area would be half the size of the penalty box. Under Dunnes's plans, more than 90% of the Store will forever remain a concrete shell” [para. 15 plaintiff's written submissions].

4 . Dunnes proceeded to carry out the works set out in its Fit Out Plan, and issued a motion seeking to vary the orders to extend the time in which it was to execute and complete the Fit Out Works to 27 July 2022 – the day before the hearing of the plaintiff's application herein. The defendant's position – which I shall outline more fully below – was that its submission of the Fit Out Plans and construction of the unit were consistent with its obligations under the Development Agreement and were not in breach of the orders, save that an extension of time would be required to comply with them.

5 . It is necessary in this judgment to say something about the background to the dispute in order to set the context for the present applications. However, the interactions of the parties after the conclusion of the Development Agreement in 2008 were set out in detail by Barniville J. in his judgment of 1 October 2021 (see [2021] IEHC 628). The Court of Appeal, in its judgment on the appeal from the order of Barniville J., pointed out that the High Court had set out “all the relevant facts which are not in dispute”, and stated that it would “gratefully adopt [the factual background and relevant legal principles] in their entirety as they appear in the judgment of the High Court” (see: [2022] IECA 39, para. 2). To the fullest extent possible, I propose to take a similar approach, and likewise adopt the summary of factual matters in the judgment of Barniville J. up to the date of that judgment.

6 . However, as the question of whether the defendant is in contempt of the order of Barniville J. will require an examination of what occurred between the date of that order and commencement of the hearing of the present application on 28 July 2022, it will be necessary to examine the steps taken by both parties, and by the defendant in particular, during that period.

Background

7 . In order to understand the present application, it is necessary to provide context by summarising, as briefly as possible, the events leading to the judgment and order of Barniville J.

8 . On 27 February 2008, a Development Agreement (‘the Development Agreement’) was made between PVDL, Dunnes and Henry A. Crosbie (‘Mr. Crosbie’ or ‘the landlord’). This agreement was amended by terms of settlement (‘the settlement agreement’) on 7 July 2010 and a supplemental deed of settlement (‘the supplemental settlement agreement’) on 1 November 2010. It should be noted that, while the Development Agreement refers prominently on its front page to “Anchor Site at Point Village North Wall Quay Dublin 1”, it does not however contain a definition of “anchor” or “anchor site”. The term “Store” is defined as “…that part of the Centre to comprise a retail anchor store and service yard together with the Plant Area, ancillary works, services and facilities to be constructed on the Store Site as shown on or described in the Store Plans in accordance with this Agreement and to include the following target Gross Internal Areas at the levels specified…”. This definition is followed by a table describing the anticipated use of each of the various levels of the Store, with a “Target Area” attributed to each use. For instance, the figures indicate that “Retail” will be the appropriate use at level -2 and level 0, with “Retail/Office” being the appropriate use at level +1. The areas attributed to these uses are 3,380sqm, 2,562sqm and 2,440sqm respectively.

9 . The Store is occupied by Dunnes pursuant to a long lease dated 28 November 2008 between Dunnes and the landlord. By a deed of appointment of 17 April 2013, Paul McCann and Stephen Tennant were appointed as receivers (‘the receivers’) by National Asset Loan Management Limited (‘NALM’) of the assets and undertaking of PVDL; the receivers were appointed to the landlord's freehold interest in the development, the Point Square Shopping Centre (‘the Centre’).

10 . Almost from the outset there have been dispute and litigation between PVDL and Dunnes in relation to the extent and effect of Dunnes' obligations under the Development Agreement. A helpful chronology of this litigation is set out at tab 5 to the grounding affidavit...