Riordan v Carroll

• Jurisdiction: Ireland
• Judge: Mr. Justice Kinlen
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 5460
• Docket Number: No.1995/149 C.A.
• Court: High Court
• Date: 01 January 1996

1995 WJSC-HC 5460

THE HIGH COURT

No.1995/149 C.A.

RIORDAN v. CARROLL

(CIRCUIT APPEAL)

BETWEEN

SYLVESTER WILLIAM RIORDAN AND DEREK O. MULLIGAN

PLAINTIFFS

AND

TERRY CARROLL T/A WYVERN GALLERY

DEFENDANT

Citations:

BROWNE V DEANE 1910 AC 373

LADD V MARSHALL 1954 1 WLR 1489

SKONE V SKONE 1971 1 WLR 812

ROE V ROBERT MCGREGOR & SONS LTD 1968 1 WLR 925

NEW YORK EXCHANGE LTD, IN RE 1888 79 CH D 415

DALTON V MIN FOR FINANCE 1989 ILRM 519

BALKAN BANK V TAHER UNREP SUPREME 19.1.95 1995/1/144

FOSS V HARBOTTLE 1843 2 HARE 461

SUPERWOOD V SUN ALLIANCE UNREP SUPREME 27.6.95

PINNELS CASE 5 REP 117A

FOAKS V BEERE 1884 9 AC 605

PROVINCIAL BANK OF IRELAND V DONNELL 1934 NI 33

FITZGERALD V PORTARLING (IRISH EXCHEQUER) 1835 JONES REP 1838

MCCORMACK V COSGRAVE 1947 IJ 5

COURTS OF JUSTICE ACT 1936 S37

FITZPATRICK V POWELL 1946 IR 320

DEASYS ACT 1860 S13

WYLIE IRISH LAND LAW PARA 15.17

CORKERRY V STACK 1947 ILTR 60

DEASYS ACT 1860 S48

MACCAUSLAND & KIMMITT V CARROLL & DOOLEY 1938 71 ILTR 158

CCR 1930 O.7 r6

CCR 1950 O.12 r7

FITZGERALD V DAY 6 LRG 326

DEASYS ACT 1860 S41

WHELAN V MADIGAN 1978 ILRM 136

LAW REFORM COMMISSION WORKING PAPER LIABILITY OF BUILDERS VENDORS & LESSORS (NO 1) 1977

CHAMBERS V CORK CORPORATION 93 ILTR 45

DEALE ON LANDLORD & TENANT 214

BROWNE V NORTON 1954 IR 34

SUPREME COURT PRACTICE 1988 (WHITE BOOK) 59/10/7

DEASYS ACT 1960 S14

LANDLORD & TENANT (IRL) ACT 1860 S13

LANDLORD & TENANT (IRL) ACT 1860 S48

LANDLORD & TENANT (IRL) ACT 1860 S41

LANDLORD & TENANT (IRL) ACT 1860 S14

Synopsis:

EVIDENCE

Admissibility

Applicant - Delay - Appeal - Hearing - Appeal from decision of Circuit Court - Decision of High Court on facts not appealable - Unsigned document not permitted to be introduced for first time at hearing of appeal - (1995/149 CA - Kinlen J. - 28/7/95)

|Riordan v. Carroll|

LANDLORD AND TENANT

Ejectment

Lessee - Rent - Payment - Failure - Business premises - Business disrupted by major development of neighbourhood - Plaintiffs not responsible for disruption - Alleged collateral agreement made after lease - Unsigned document introduced at hearing of appeal from Circuit Court - Document not admitted in evidence - (1995/149 CA - Kinlen J. - 28/7/95) - [1996] 2 ILRM 263

|Riordan v. Carroll|

1 Judgment of The Honourable Mr. Justice Kinlen delivered the 28th day of July, 1995.

2 The Plaintiffs" claim is for possession of All That And Those the hereditaments and premises known as 2, Temple Lane South, Temple Bar, Dublin. The Defendant held the property under an Indenture of Lease dated 1st August, 1993 for a period of thirty five years from that date subject to a yearly rent of £12,000 payable quarterly and subject to yearly payments in respect of insurance. The lease contained the usual provision for re-enter if the rent be unpaid for fourteen days after any of the days appointed for payment. The Civil Bill also claimed arrears of rent and of insurance premiums, mesne rates and interest. The Civil Bill was issued the 9th July, 1994. A motion for summary judgment brought to the Circuit Court by motion paper dated the 29th July, 1994. The original developer and lessor was Temple Bar Properties Limited. They waived the rents due by the Defendant in respect of the Premises for the months of February and March 1994. Accordingly, the Plaintiffs" claim as successors in title to Temple Bar Properties was for rent since the 1st April, 1994. The lease contained specific covenants on behalf of the lessee to pay the rent or the increased rent on the days and in the manner prescribed without any deductions and to pay to the lessor from time to time on demand without any deductions or abatements the amount or amounts expended by the lessor on foot of keeping up the insurance of the building. She also covenanted to pay interest on the rent and insurance premium if same remained unpaid at a rate as specified in paragraph 3 of the lease. The Defendant states that she has owned and operated an independent art gallery in the Temple Bar area since January, 1990. After protracted negotiations she entered into the lease already mentioned. She was assured by Owen Hickey, Property Director of Temple Bar Properties Limited, that she would have an option to purchase the premises at a break-even price and that the lease would not affect this option. This option was to be exercised in 1996 when Temple Bar Properties Limited expected to complete its operations in the Temple Bar area or at the time of the five year rent review date set out in the lease. She noticed shortly after she went into occupation that there was damp and also cracks and that some paintings were damaged and Temple Bar Properties apparently gave her a credit against the rent due, to repair them. Because of the continuous development in the area with part of the street in front of her premises being blocked and turned into a builders yard and with noise, demolition, dust, and cement mixing vibrations she alleges that patrons could not gain access to her gallery. There were some discussions between herself and a representative of Temple Bar Properties but they do not concern these present proceedings. They may well arise in the proceedings which she is maintaining against Temple Bar Properties and others. The architects called by both sides basically agree that there is some evidence of dampness, particularly the walls of the kitchenette and toilet. The walls below the floor level show high damp readings but there is no evidence of dampness in the party walls overhead. There seems definitely to be a problem at the rear wall. Heating and possibly a dehumidifier would have accelerated the drying-out process. A Super-Ser heater on the top floor may, in fact, have actually emitted moisture and certainly would not have been conducive to removing the damp. The Defendant, by Motion dated the 10th November, 1994, applied to the Circuit Court to join Temple Bar Properties Limited in the proceedings. The President of the Circuit Court, on the 18th day of November, 1994, struck out the Plaintiffs" Motion for summary judgment, directed that the Defendant lodge into Court within ten days of the 18th November, 1994 the sum of £3,000 pending determination of the proceedings, extended the time for filing the Defendant's Defence for ten days from the date of lodgment as aforesaid and joined Temple Bar Properties as a third party in the proceedings. The Defence was delivered on the 25th November, 1994 and was a traverse with a counterclaim alleging that prior to the entering into the lease agreement it was an express and/or implied representation that the newly constructed art gallery to be provided for the Defendant would be suitable for which it was built, that all work would be done in a good and workman like manner, that good and proper materials would be used in the construction thereof and that the building would be reasonably fit for human habitation. It was an express and/or implied term of the said lease that the purpose-built premises would be suitable for the purpose for which it was designed. The Defendant alleged that because of continued dampness on the wall and cracks which had appeared, none of which were remedied, she suffered loss and damage. She also alleged that the Plaintiffs were in breach of the covenant under the lease for quiet enjoyment and that the Defendant had been subjected to a number of interferences including the constant blocking of the street on which the Defendant's premises stands by construction vehicles of every description, including cement mixing machines, lorries, articulated trucks carrying construction materials and equipment, cranes, tankers, large debris skips, and scaffolding trucks, and, further by the erection of pedestrian barriers at both ends of the street preventing access by the general public; and by the obtaining of Road Closure Orders; and, by the setting off of alarms, and, by the general disruption to the Defendant's business due to excessive dust and vibrations caused by the extensive construction, demolition and excavation works. She claimed loss of profits from the 1st August, 1993 to the 31st July, 1994.

3 However, it was clear that all of these alleged interferences with access to her premises were not caused by the Plaintiffs in the present proceedings. They are matters for determination in the proceedings which she is taking against Temple Bar Properties Limited and others.

4 On the 25th November, 1994 the Defendant lodged the £3,000 without admission of liability in pursuance of the Order of the President of the Circuit Court. By a Plenary Summons dated the 16th September, 1994, the Defendant herein brought proceedings against Temple Bar Properties Limited and G. & T. Crampton Limited and McGill Brothers Limited as Defendants. An application was brought before Mr. Justice Barron on the 21st October, 1994 in those proceedings for an interlocutory injunction and by consent it was ordered that the Motion and action as against the third named Defendant be struck out with no Order as to costs and certain recited undertakings being given by Messrs G. & T. Crampton Limited that no Order be made on the Motion as against the first named Defendant and provision was made for further pleadings.

5 The third party in the Circuit Court proceedings namely, Temple Bar Properties Limited, appealed to the High Court from the whole of the judgment of Mr. Justice Spain, President of the Circuit Court, given on the 18th November, 1994. Mr. Justice Keane on the 6th March, 1995 allowed the appeal and directed that the third party notice be set aside. He had been urged to allow the entire proceedings to be consolidated but, by the said Order, refused that application.

6 The present proceedings came before Judge Buchanan on the 13th March, 1995 and he ordered that the Plaintiffs recover possession and the sum of £15,252.82 together...