Roberts v O'Neill

• Jurisdiction: Ireland
• Judge: McCARTHY J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 3196
• Court: Supreme Court
• Docket Number: [1978 No. 1451P],(221/1981)
• Date: 01 January 1983

1982 WJSC-SC 3196

THE SUPREME COURT

O'Higgins C.J.

Hederman J.

McCarthy J.

(221/1981)

ROBERTS v. O'NEILL

ROBERTS

v.

O'NEILL & ANOR.

Affirming High 3.7. '81

1 JUDGMENT delivered on the 8th day of December 1982 by McCARTHY J. (NEM DISS)

2 This is an action for specific performance of a contract dated the 17th January 1978 made between the Plaintiff (in trust) and the Defendants for the sale by the Defendants to the Plaintiff of "The Silver Tassie", a licensed premises at Loughlinstown, Co. Dublin. In the High Court McWilliam J. granted the order sought for specific performance and awarded damages measured at bank interest on the sum of £30,000 paid as deposit on the signing of the contract, up to the date of judgment. The first-named Defendant, who is the husband of the second-named Defendant, has appealed against the order for specific performance seeking, in effect, an order that the Plaintiff be compensated in damages only, so that he, that Defendant and his wife may retain the licensed premises. For the reasons that I shall state,in my judgment,the appeal fails.

The Facts

3 It is desirable to set out, in some detail, the subsequence of events.

4 In 1973, the Defendants bought the Silver Tassie, for an undisclosed sum, and, thereafter, remained joint owners. In November 1977, their daughter was "Coshed" in a burglary at their home which is a bungalow adjoining the Silver Tassie. Because of this, Mr. O'Neill became increasingly worried and thought it might be better to sell the premises, a view not shared by his wife who wanted their son, then aged 13, to continue in the business. What one might call the O'Neill experience in the public house business only began in 1973. During the weekend before the 16th January 1978, discussions took place between Corry Buckley, acting on behalf of one Gerard Carthy, the O'Neills, and Gerard Black who was their solicitor, arising from which discussions it was subsequently maintained by Carthy that there was an enforceable contract for the purchase by him of the premises for £190,000. On the 16th January the Plaintiff, who is, in effect, a nominee for the Madigan Group, owners of a chain of public houses, learnt of the possibility that the premises might be on the market and called there on that night. His son-in-law, Mr. Madigan, contacted Mr. Moore, the agent for the O'Neills. The next day, a formal contract in the printed form authorised and issued by the Incorporated Law Society of Ireland, suitable completed as to amount, closing date, deposit and details of title was executed by the Plaintiff personally, and by Mr. Black, solicitor as agent for the O'Neills. The closing date was fixed for the 17th February upon which date, in fact, the plaintiff's solicitors sent a draft conveyance to the O'Neills' solicitors. On the 21st February in a letter to the Plaintiff's solicitors, Mr. Black stated -

5 "6. Since formally replying to your requisitions on title herein we have been notified by another firm of solicitors that a client of theirs may institute proceedings against the vendor. Such proceedings were infact issued against the wrong party (not our client) about three weeks ago but we returned same to the said solicitors indicating that the proceedings were not in order. To-date neither we nor our clients have received any amended or new summonses. On the 28th February, Mr. Black wrote to the Plaintiff's solicitors enclosing "herewith Memorandum and Index relating this matter".

6 On the 6th March, the Plaintiff's solicitors wrote to Mr. Black -

7 "In order to protect our clients' interests, we have registered the contract for sale dated the 17th January 1978 and in order to protect our clients' interests further, we feel that a Lis Pendens must be registered. This means that proceedings must be commenced and we will be issuing plenary summons in this regard tomorrow. Please let us know what steps your clients intend to take to have the Lis Pendens in the Carthy action removed as obviously while this is still on the record we cannot advise our client to complete".

8 On the 7th March 1978, a plenary summons was issued by the Plaintiff but no reply to the observation about the Lis Pendens appears to have been received at any time.

9 On the 7th June a statement of claim was delivered claiming an order for specific performance of the agreement and damages.

10 On the 19th July a joint defence and counterclaim delivered on behalf of the Defendants pleading, essentially, that because of Carthy's action, the Defendants were unable to complete and pleading, in particular

11 "4. If, contrary to the Defendant's (sic) contention, the contract for sale was not conditional upon the said Gerard Carthy not succeeding in claiming that he had entered into a binding contract for the sale of the said premises to him, the contract is in any event impossible of performance until the determination of the said proceedings, and, in the event of the said proceedings being determined in favour of the Defendants, they are ready and willing to complete the sale to the Plaintiff." (emphasis added)

12 The action by Carthy against O'Neill was heard on the 4th and 5th July 1979 by Gannon J. and judgment was delivered in October, when the learned Judge held that the Carthy contract was legally enforceable, and joined Mrs. O'Neill as a defendant to that action. The O'Neills appealed and in its judgment of the 30th January 1981, the Supreme Court allowed the appeal and dismissed Carthy's action.

13 On the 2nd March 1981, the Plaintiff's solicitors called upon the Defendants, through their solicitors, forthwith to complete the sale and indicated a claim for damages for delay.

14 On the 19th March, Mr. Black informed the Plaintiff's solicitors that "we will be applying on behalf of the first named Defendant to amend the defence as it is the first named Defendant's contention that this is not a proper case for specific performance". Mr. Black had ceased to act on behalf of Eileen O'Neill, the second Defendant. The terms of the amended defence were sent sometime towards the end of March 1981 to the Plaintiff's solicitors, and an amended defence by Eileen O'Neill, in which she denied Mr. Black's authority, was filed on the 5th of May 1981. This contention of Mrs. O'Neill was rejected by the trial Judge, and no appeal has been brought against that finding.

15 On the 6th May 1981, an amended defence and counterclaim was filed on behalf of Michael O'Neill, the first Defendant, and the material portion of this was to strike out the words to which I have added emphasis in the original defence and counterclaim at paragraph 4 and add a plea to this...