Point Village Development Ltd ((in Receivership)) v Dunnes Stores

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 14 November 2017
• Neutral Citation: [2017] IEHC 676
• Docket Number: [2016 No. 126 S.P.]
• Court: High Court
• Date: 14 November 2017

BETWEEN

POINT VILLAGE DEVELOPMENT LIMITED

(IN RECEIVERSHIP)

PLAINTIFF

AND

DUNNES STORES

DEFENDANT

[2017] IEHC 676

[2016 No. 126 S.P.]

THE HIGH COURT

Contract – Breach of contract – Interpretation of agreement clauses – Subjective intent of parties – Plain and natural meaning

Facts: The parties entered into a sale-purchase agreement and also another Development Agreement. The dispute arose between them and now the parties were before the Court seeking proper constriction of subject clauses in the said Development Agreement and the Settlement Agreement.

Ms. Justice Costello held that the plaintiff was entitled to the reliefs sought. The Court held that under the relevant agreement, the defendant was bound to release the amount of money that it had withheld. The Court pointed out that in the construction of the contract, the subject intentions of the parties coupled with the surrounding circumstances must have been taken into account. The Court stated that the word 'tenant' in the dispute clause would carry the plain and ordinary meaning and not 'quality tenant' as asserted by the parties as the parties had never intended to give it the other meaning than the one that had naturally flown from the intent of the parties.

JUDGMENT of Ms. Justice Costello delivered on the 14th day of November, 2017

1 These proceedings concern the construction of a settlement agreement entered into between Dunnes Stores and Point Village Development Limited and Henry A. Crosbie which, in turn, amended earlier agreements which had been entered into by those parties. In particular, the court is asked to construe the meaning of two clauses of the settlement agreement.

Background

2 In February 2008 the defendant agreed to acquire from Mr. Henry A. Crosbie (Mr. Crosbie) what was referred to as the anchor site in the development known as Point Village at the North Wall Quay in the City of Dublin and the defendant entered into an agreement with the plaintiff for the construction of a retail store on the site (the store). There was an agreement for sale dated the 26th February, 2008 between Mr. Crosbie as vendor and the defendant as purchaser whereby Mr. Crosbie agreed to sell the anchor site to the defendant by way of a lease for 250 years at a nominal rent (the Long Lease). This agreement was completed by the grant of a lease by Mr. Crosbie to the defendant dated the 28th November, 2008.

3 In addition, the plaintiff and the defendant (with Mr. Crosbie participating to consent to the agreement) entered into a Development Agreement dated the 27th February, 2008.

4 The timing of the agreements proved to be unfortunate as they were overtaken by the economic crisis of 2008-2009 and disputes arose in relation to the development. On the 2nd June, 2009 the defendant commenced proceedings against the plaintiff and Mr. Crosbie in the High Court (Record Number 2009/5004 P) (the 2009 proceedings) in which the parties claimed and counterclaimed against each other in respect of obligations arising from the agreements. The 2009 proceedings were listed for hearing and terms of settlement were reached between the parties on the 7th July, 2010 (the Settlement Agreement).

5 Despite the fact that the Settlement Agreement was intended to dispose of the 2009 proceedings, further disputes arose between the parties and the matter came back before court. The parties subsequently negotiated supplemental terms of settlement which were referred to as the supplemental agreement but the details of which are not relevant to the issues in this case.

The Development Agreement

6 The Point Village Centre (the Centre) was part of a wider ambitious development at the lands situated near the 3Arena in Dublin's docklands. There was to be a signature 39 storey building on the riverfront titled the Watchtower, a U2 Experience/Museum housed in a building called the Spine, the Centre and Point Square between the 3Arena and the Centre. The development was to be a new destination in Dublin for living, tourism, shopping and entertainment. The Development Agreement related to the development of the Centre and Point Square and was entered into in the context of the wider plan for the development of the entire area in accordance with Mr Crosbie's ambitious plans.

7 The plaintiff's obligations under the Development Agreement primarily relate to the 'Building Works' which is defined as 'the Store Works, the Centre Works and the Minimum Works' (Clause 1.5).

8 The Building Works are precisely defined in the definitions in the Development Agreement by reference to specifications, plans and in the provisions relating to the plaintiffs' obligations to carry out the Building Works. They are set out on six and a half pages in 21 sub clauses.

9 The 'Access Date' (Clause 1.2) is defined as: -

'...the date on which the Developer's Architect issues written confirmation to Dunnes [sic] representative certifying that the Store Works have reached Practical Completion in accordance with this Agreement and that the remaining Building Works have reached a stage enabling Dunnes and its contractors safely and efficiently to carry out Dunnes Works and use the Fit-Out Compound and safely and efficiently to proceed with and complete Dunnes Works without interruption or delay...

[If there is a dispute] as to whether or not the Access Date has properly occurred the matter shall be referred to the Independent Architect. It is expressly provided that the Access Date shall not be deemed to have been achieved until the date of issue to Dunnes of the Access Certificate in accordance with the agreement. The Access Certificate is a certificate of the developer's architect or the independent architect, as the case may be, certifying the Access Date in accordance with the Development Agreement (Clause 1.1).

10 Clause 11 requires the defendant from the Access Date to procure that the Fit- Out Works (as defined in Clause 1.38) are designed, carried out and completed in a good and workmanlike manner and in accordance with good building practice (Clause 11.4). Under Clause 11.5 the defendant is required with effect from the Access Date diligently to procure the execution and completion of the fit out works within the Fit-Out Period i.e. 26 weeks from the Access Date (with a proviso for an extension of time in certain circumstances).

11 Subject to the achievement of Practical Completion of the Building Works, Clause 11.12 requires the defendant to commence trading to the public from the Store as 'Dunnes' and/or 'Dunne's Stores' no later than the Store opening date. The Store opening date is defined as the later of the expiry of the fit out period and centre opening. Centre Opening (subject to provisions in relation to extensions of time) is defined in Clause 1.8 as: -

'The date following the Practical Completion of the Building Works in accordance with this Agreement that the Developer formally declares the Centre (other than the hotel and offices) open to the public, which date shall not be later than 26 weeks after the Access Date...'

Practical completion must be in accordance with the definition in Clause 1.57 and there is provision for the appointment of an independent architect to resolve any dispute as to whether or not practical completion has occurred.

12 Under Clause 1.17 the contract sum originally payable by the defendant was €46 million plus VAT. It was to be paid in stages into a deposit account referred to as the nominated account opened in the joint names of the plaintiff's and the defendant's solicitors at Allied Irish Bank plc. Within five working days of receipt by the defendant of a Payment Certificate certifying Practical Completion of the Building Works the entire amount including accrued interest was to be released to the plaintiff (Clause 9.5).

13 The Development Agreement and Long Lease were each varied by the Settlement Agreement. The relevant provisions of the Settlement Agreement are considered below.

14 Suffice to say at this stage that the consideration payable by the defendant pursuant to the Development Agreement was reduced by the Settlement Agreement from €46 million to €31 million and it was agreed that the defendant would lodge the entire consideration of €31 million to the nominated account. The original payment mechanism was replaced by Clause 11 of the Settlement Agreement which provided a new payment mechanism. This provides that consideration already lodged to the nominated account is to be released to the plaintiff in four tranches upon the plaintiff and Mr. Crosbie achieving certain stipulated milestones.

15 The first tranche fell due under Clause 11 (a) upon the plaintiff achieving practical completion of the Building Works other than the Point Square. The sum of €11,880,000 (plus interest) was released from the nominated account to the plaintiff following the execution of the supplemental settlement agreement in November 2010. Clause J (ii) of that agreement confirmed that this milestone had been achieved. No further monies have been released since that date.

Appointment of Receivers

16 By deeds of appointment dated 17th April, 2013, 18th April, 2013 and 27th May, 2013 Mr. Paul McCann and Mr. Stephen Tennant were appointed as joint receivers and joint statutory receivers of certain assets of Mr. Crosbie and the plaintiff including their respective interests in the Point Village Centre, the Dunnes unit, the Long Lease and the Development Agreement (as amended).

17 Following their appointment the receivers took control of the assets, though there was a delay in obtaining all the relevant files and agreements in relation to the assets that constitute the subject matter of these proceedings. The files were eventually released to the receivers in March 2014 whereupon the receivers engaged with the defendant with a view to completing matters which remained outstanding...