Point Village Development Ltd v Dunnes Stores Unlimited Company

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 01 October 2021
• Neutral Citation: [2021] IEHC 628
• Court: High Court
• Docket Number: [2018 No. 6540 P.]

Between

Point Village Development Limited

Plaintiff

and

Dunnes Stores Unlimited Company

Defendant

[2021] IEHC 628

[2018 No. 6540 P.]

THE HIGH COURT

COMMERCIAL

Specific performance – Contractual interpretation – Breach of contract – Plaintiff seeking orders of specific performance – Whether the defendant was in breach of contract

Facts: The plaintiff, Point Village Development Ltd (PVDL), claimed that the defendant, Dunnes Stores Unlimited Company (Dunnes), was in breach of certain provisions of the contractual arrangements agreed between PVDL, Mr Crosbie and Dunnes and subsequently amended by the parties, concerning the fit out of the anchor store in the development at the Point Village on North Wall Quay in Dublin 1, such that the High Court should grant specific performance to the plaintiff to compel Dunnes to comply with its contractual obligations under those provisions. The plaintiff contended that Dunnes should not be permitted to advance the argument which it sought to advance on the disputed issue of contractual interpretation on the grounds that (a) the issue was res judicata or the subject of an issue estoppel based on the judgment of Laffoy J in the High Court in proceedings commenced by PVDL and Mr Crosbie against Dunnes in 2011 (the 2011 proceedings) and on the judgment of Costello J in the High Court (as subsequently upheld by the Court of Appeal) in proceedings brought by PVDL (in receivership) against Dunnes in 2016 (the 2016 proceedings), and (b) in the event that the issue was not res judicata, it was a breach of the rule in Henderson v Henderson (1843) 3 Hare 100 for Dunnes to seek to advance the argument which it sought to advance on the basis that it could have made, but did not make, that argument in defending the 2011 proceedings and/or in defending the 2016 proceedings. Dunnes did not accept that the particular issue of contractual interpretation raised by it in its defence of the proceedings was decided either in the judgment of Laffoy J in the High Court in the 2011 proceedings or in the judgment of Costello J in the High Court in the 2016 proceedings. It further contended that there was no impediment to it raising that issue in defence of the plaintiff’s claim in the proceedings.

Held by Barniville J that by applying the relevant principles of contractual interpretation to the facts which were relevant to the issue, the construction of the relevant provisions of the contractual documents advanced by the plaintiff was the correct one and that the construction put forward by Dunnes was incorrect. Barniville J was satisfied that on the correct interpretation of the relevant contractual provisions, Dunnes was under a contractual obligation to take the various steps in connection with the fit out of the anchor store in the Point Village development, that in breach of contract Dunnes failed to take those steps, that Dunnes continues to be in breach of contract in respect of the steps required to be taken and that the court should make an order directing Dunnes to take those steps.

Barniville J held that the plaintiff was entitled to the orders of specific performance sought in respect of Dunnes’ contractual obligation (a) to prepare and submit to the plaintiff the “Fit Out Plans” under clause 11.1 of the Development Agreement and (b) to use its reasonable endeavours to obtain the “Fit Out Consents” including a fire safety certificate for the “Fit Out Works” (if such was required) under clause 11.2.1 of the Development Agreement.

Relief granted.

JUDGMENT of Mr. Justice David Barniville delivered on the 1st day of October, 2021

Index

1. Introduction	2
2. Summary of Decision	3
3. Structure of Judgment	3
4. General Factual Background	4
5. Relevant Provisions of Development Agreement (as Amended and Varied by other Agreements)	7
6. 2011 Proceedings and 2016 Proceedings: Judgments of Laffoy J. and Costello J.	12
7. Relief Claimed in these Proceedings	20
8. Relevant Facts	23
9. The Construction Issue	28
10. Res Judicata and Issue Estoppel	46
11. Rule in Henderson v. Henderson	48
12. Summary of Conclusions	51
13. Reliefs to be Granted	52
14. High Court Practice Direction HC 101	53

1. Introduction

1 . This is my judgment in the latest set of proceedings, which by my reckoning is the fifth set of proceedings, between these parties concerning the development of a shopping centre at the Point Village on North Wall Quay in Dublin 1. The plaintiff company, Point Village Development Ltd (“PVDL” or the “plaintiff”), is in receivership. In April and May, 2013 Paul McCann and Stephen Tennant were appointed as joint receivers and joint statutory receivers (“the Receivers”) in respect of all of the assets of PVDL and certain assets of Mr. Harry Crosbie (“Mr. Crosbie”). The defendant is Dunnes Stores Unlimited Company (“Dunnes”). There has been a litany of previous proceedings between the parties concerning the Point Village development. In her judgment in one of the earlier sets of proceedings in November, 2012, Laffoy J. in the High Court described those proceedings as “the latest episode in a long running saga”. Nine years later, the saga continues. The parties have been to the High Court, to the Court of Appeal and to the Supreme Court in respect of various aspects of the disputes between them which were the subject of the earlier proceedings.

2 . The issue with which this judgment is concerned is whether Dunnes is in breach of certain provisions of the contractual arrangements agreed between PVDL, Mr. Crosbie and Dunnes and subsequently amended by the parties, in circumstances described in more detail below, concerning the fit out of the anchor store in the Point Village development such that the court should grant specific performance to the plaintiff to compel Dunnes to comply with its contractual obligations under those provisions. Ultimately, the resolution of that issue turns on quite a net issue of contractual interpretation affecting a relatively small number of provisions in the various agreements made by the parties.

3 . While that is the principal issue which requires to be determined by the court, the plaintiff has raised a number of other issues which may or may not require to be determined by the court depending on the outcome of the construction issue.

4 . The plaintiff contended that Dunnes should not be permitted to advance the argument which it sought to advance on the disputed issue of contractual interpretation on the grounds that (a) the issue was res judicata or the subject of an issue estoppel based on the judgment of Laffoy J. in the High Court in proceedings commenced by PVDL and Mr. Crosbie against Dunnes in 2011 (the “2011 proceedings”) and on the judgment of Costello J. in the High Court (as subsequently upheld by the Court of Appeal) in proceedings brought by PVDL (in receivership) against Dunnes in 2016 (the “2016 proceedings”) and (b), in the event that the issue was not res judicata, it was a breach of the rule in Henderson v. Henderson (1843) 3 Hare 100 for Dunnes to seek to advance the argument which it sought to advance on the basis that it could have made, but did not make, that argument in defending the 2011 proceedings and/or in defending the 2016 proceedings. The plaintiff maintained that, without prejudice to its principal argument on the proper construction of the relevant provisions of the agreements between the parties, Dunnes was precluded from making the case which it sought to make under the rule in Henderson v. Henderson. Dunnes did not accept that the particular issue of contractual interpretation raised by it in its defence of the current proceedings was decided either in the judgment of Laffoy J. in the High Court in the 2011 proceedings or in the judgment of Costello J. in the High Court in the 2016 proceedings. It further contended that there was no impediment to it raising that issue in defence of the plaintiff's claim in the present proceedings.

2. Summary of Decision

5 . For reasons set out in detail in this judgment, I have concluded that, by applying the relevant principles of contractual interpretation to the facts which are relevant to the issue, the construction of the relevant provisions of the contractual documents advanced by the plaintiff is the correct one and that the construction put forward by Dunnes is incorrect. I am satisfied that on the correct interpretation of the relevant contractual provisions, Dunnes is and was under a contractual obligation to take the various steps in connection with the fit out of the anchor store in the Point Village development, that in breach of contract Dunnes failed to take those steps, that Dunnes continues to be in breach of contract in respect of the steps required to be taken and that the court should make an order directing Dunnes to take those steps. I have concluded, therefore, that it is appropriate to grant certain orders of specific performance to the plaintiff, the details of which are discussed later.

6 . Having reached that conclusion on the interpretation of the relevant contractual provisions, it seems to me that it is not strictly necessary for me to decide whether the construction issue raised by Dunnes was res judicata or barred by issue estoppel or whether Dunnes was otherwise precluded from raising the issue by virtue of the rule in Henderson v. Henderson. However, for completeness, I have decided to deal briefly with those issues in the judgment.

7 . I have concluded that Dunnes was not precluded from advancing the arguments which it advanced or from making the case which it sought to make on the interpretation of the relevant contractual provisions by reason of the doctrines of res judicata or issue estoppel or by reason of the rule in Henderson v. Henderson. I am...