Quarryvale Two Ltd v Beere

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 14 December 2012
• Neutral Citation: [2012] IEHC 546
• Court: High Court
• Date: 14 December 2012

[2012] IEHC 546

THE HIGH COURT

[4548 S/2011]

Quarryvale Two Ltd & Quarryvale Three Ltd v Beere

BETWEEN

QUARRYVALE TWO LIMITED AND QUARRY VALE THREE LIMITED

PLAINTIFF

AND

STEPHEN BEERE AND GRAEME BEERE

DEFENDANTS

RSC O.37 r1

DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY v JERMYN STREET LTD & BLACK TIE LTD UNREP CLARKE 1.6.2010 2010/13/3225 2010 IEHC 217

RSC O.63 r8

RSC O.37

RSC O.37 r4

RSC O.37 r6

RSC O.37 r7

Landlord & tenant - Lease - Rent and related charges - Plaintiffs seeking sum in relation to outstanding rent and charges owed by defendants - Ord 37, Rules of the Superior Courts

Facts: The plaintiffs were landlords of premises in a shopping centre in Clondalkin, leased by the defendants. A summary summons had been issued in the matter in relation to outstanding sums for rent and charges under the leave. The plaintiffs had sought liberty to enter final judgment for sums claimed in that summons, plus fresh but related sums. The defendants sought to resist this application on the basis that the plaintiffs could not seek final judgment for any sums not detailed in the summary summons. The Master hearing the claim granted leave to enter judgment for the orginal sum only, and the plaintiffs now sought to set aside the judgment of the Master.

Held by O'Neill J, that the Master appeared to consider that any additional claim arising after the issue of the summary summons required a fresh summons. However, an examination of the provisions of Ord 37 of the Rules of the Superior Court 1986 determined that fresh claims closely connected to the original claim could be included in an application for leave to enter final judgment if the fresh claims were correctly detailed and supported by evidence. As such, the additional sums claimed by the plaintiffs in this claim were eligible to be included in the final judgment, and the Master's decision would be amended accordingly. Dublin Docklands Development Authority v Jermyn Street Ltd. and Blacktie Ltd [2010] IEHC 217 applied.

1 1. In these proceedings, the plaintiffs, by way of summary summons issued on 4 ^th November 2011, claimed the sum of €43,858.31 for rent and other charges, namely, a food service charge, and a service charge and also interest on the foregoing for the period of 1 ^st October 2011, to 31 ^st December 2011, particulars of which were set out in the special endorsement of claim on the summary summons. The plaintiffs' claim was to the effect that these sums were due on foot of a lease dated 30 ^th April 2004, in respect of which the plaintiffs held the landlord's interest and the defendants, the lessee's interest. The lease was in respect of premises known as Food Court Kiosk, 4 Liffey Valley Shopping Centre, Fonthill Road, Clondalkin, Dublin 22. The lease in question was for a term of twenty years from 1 ^st April 2004.

2 2. By way of a notice of motion, the plaintiffs sought liberty to enter final judgment for the sum of €44,274.87. This notice of motion was returnable before the Master of the High Court on 31 ^st January 2012. The increase in the sum claimed in the notice of motion, above that claimed in the summary summons, was in respect of interest that had accrued over the interval pursuant to clause 4.5 of the aforesaid lease.

3 3. Paragraph two of this notice of motion also claimed the following relief:

2 2 "2. Such further or other arrears of rent, insurance or service charge which may become due and owing prior to the determination of these proceedings."

4 4. This latter relief claimed, reflects paragraph three of the special endorsement of claim on the summary summons which makes a claim in similar terms.

5 5. The application before the Master of the High Court was grounded on the affidavit of Mr. Roy Deller. That affidavit was sworn on 9 ^th December 2011, and it deposes to the lease and the breaches of it and the arrears in respect of which claims were made in the summary summons and the notice of motion, together with interest pursuant to the lease on those arrears. The total claim in this affidavit is as set out in the notice of motion, namely, the sum of €44,274.87.

6 6. By way of a supplemental affidavit of Mr. Roy Deller sworn on 17 ^th January 2012, additional claims are made in respect of arrears of rent and food service charge and service charges in respect of the period from 1 ^st January 2012, to 31 ^st March 2012, which Mr. Deller averred were unpaid as required by the terms of the lease. In addition, a further small sum of €1,103.20 was claimed in respect of arrears of insurance averred to have accrued for the period from 14 ^th October 2011, to 13 ^th October 2012, which said sum, it was averred, became due on 9 ^th December 2011. These additional claims, when added to the sum already claimed of €44,274.87, brought the total claim to €89,312.92, which was the claim which was advanced before the Master of the High Court when the matter came on for hearing before him on 31 ^st January 2012.

7 7. This claim was resisted by the defendants, to the extent of so much of it as was not included in the particulars set out in the special endorsement of claim on the summary summons. In opposing the claim, the defendants submitted that the Master of the High court had no jurisdiction to grant liberty to enter final judgment for any sums in respect of which the claim was not made or set up in the special endorsement of claim in the summary summons; in particular, the defendants relied upon O. 37, r. 1 which is in the following terms:

2 2 "1. Every summary summons indorsed with a claim (other than for an account) under Order 2 to which an appearance has been entered shall be set down before the Master by the plaintiff on motion for liberty to enter final judgement for the amount claimed, together with interest (if any), or for recovery of land, with or without rent or mesne profits (as the case may be) and costs, and, in the case of an action for the recovery of land for non-payment of rent, to ascertain the amount of rent due. Such motion shall be for the first available day, as the Master may fix, not being less than four clear days from the service thereof upon the defendant, and shall be supported by an affidavit sworn by the plaintiff or by any other person who can swear positively to the facts showing that the plaintiff is entitled to the relief claimed and stating that in the belief of the deponent there is no defence to the action. A copy of any such affidavit shall be served with the notice of motion."

8 8. In reliance upon this, it was submitted for the defendants that liberty to enter final judgment could only be given " for the amount claimed, together with interest (if any". Thus, it was submitted that the Master of the High...