Roche & Roche v Leacy

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 29 February 2012
• Neutral Citation: [2012] IEHC 96
• Court: High Court
• Docket Number: [No. 4127P./2009]
• Date: 29 February 2012

[2012] IEHC 96

THE HIGH COURT

[No. 4127P./2009]

Roche v Leacy

BETWEEN

PATRICK ROCHE AND JAMES ROCHE

PLAINTIFFS

AND

PHILIP LEACY

DEFENDANT

LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 40

COURTS & COURT OFFICERS ACT 1995 S34

JUDGMENTS REGISTRY (IRL) ACT 1871 S21

LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 40(A)

HALDANE v ROONEY 2004 3 IR 581 2004/21/4774 2004 IEHC 344

LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 40(B)

LAW SOCIETY OF IRELAND GENERAL CONDITIONS OF SALE GENERAL CONDITION 49

GOLDSMITHS CO v WEST METROPOLITAN RAILWAY CO 1904 1 KB 1

JUDGMENTS (IRL) ACT 1844 S10

JUDGMENT MORTGAGE (IRL) ACT 1850 S5

LIS PENDENS ACT 1867 S2

FLYNN v BUCKLEY & JAMES WALLACE (MULLINGAR) LTD 1980 IR 423 1980/5/999

LAND & CONVEYANCING LAW REFORM ACT 2009 PART XII

LAND & CONVEYANCING LAW REFORM ACT 2009 S126

MCALLISTER REGISTRATION OF TITLE IN IRELAND 1973 215

FITZGERALD LAND REGISTRY PRACTICE 2ED 1995 210

REGISTRATION OF TITLE ACT 1964 S69

REGISTRATION OF TITLE ACT 1964 S69(1)(I)

REGISTRATION OF TITLE ACT 1964 S52(1)

REGISTRATION OF TITLE ACT 1964 S68(2)

REGISTRATION OF TITLE ACT 1964 S52(2)

COFFEY & MOYLAN v BRUNEL CONSTRUCTION CO LTD 1983 IR 36 1983/1/119

WYLIE & WOODS IRISH CONVEYANCING LAW 3ED 2005 PARA 14.06

HIGGINS v IRISH LAND CMSN 1960 IR 277

CONTRACT

Sale of land

Agreement for sale - Lis pendens - Notice to complete issued by defendant - Lis pendens vacated - Defendant refusing to complete sale - Specific performance - Whether notice to complete valid - Whether plaintiffs complying with contractual obligations - Haldane v Rooney [2004] IEHC 344, [2004] 3 IR 581 applied - Higgins v Irish Land Commission [1960] IR 277 considered - Registration of Title Act 1964 (No 16), s 69 - Specific performance ordered, counterclaim dismissed (2009/4127P - Laffoy J - 29/2/2012) [2012] IEHC 96

Roche v Leacy

Facts: The plaintiffs agreed to sell lands to the defendants. A dispute had arisen as to the extent of the land included in the contract. The plaintiffs contended that the defendants' refusal to complete the purchase was in breach of contract. The defendants complained that the lis pendens had not been vacated and was never registered. The Court considered whether the notice to complete was a valid one and whether the plaintiffs had complied with their contractual obligations in relation to the title of the lands.

Held by Laffoy J. that the Court would propose making an order against the defendant for specific performance of the contract. The lis pendens had never been registered as a burden on the folio against the lands the subject of the sale as it had been vacated. The plaintiffs were in a position to furnish title to the defendants free from any claims. Accordingly, the defendant was not entitled to rescind the contract

Reporter: E.F.

Miss Justice Laffoy

1 2 1.1 These proceedings arise out of an agreement for sale dated 25^th September, 2007 made between the plaintiffs, as vendors, of the one part and the defendant, as purchaser, of the other part (the contract) whereby the plaintiffs agreed to sell to the defendant certain lands at Ballyrea, County Wexford, containing 28.309 acres statute measure, being part of the lands registered on Folio 23035 of the Register of Freeholders, County Wexford at the price of €620,000. A deposit of €62,000 was paid by the defendant to the plaintiffs on the execution of the contract. The contract incorporated the Law Society of Ireland General Conditions of Sale 2001 (revised) edition. Although this is not expressly stated in the contract, it is implicit that the plaintiffs were selling as personal representatives of their father, James Roche, who died testate on 19^th July, 1998 and probate of whose will was granted to them on 10^th December, 1998. The said James Roche had devised and bequeathed his residuary estate, which included the lands registered on Folio 23035, to his widow for life, with the remainder to the first named plaintiff absolutely, although prior to the sale there was a family dispute, the details of which are irrelevant for present purposes, as part of the resolution of which the lands registered on Folio 23035 were put up for sale. The lands the subject of the contract comprised one of four lots which were put up for sale by the plaintiffs, as such personal representatives, at the same time.

2 3 1.2 Following the execution of the contract there was a dispute between the defendant and the plaintiffs as to the extent of the land included in the contract. Proceedings by way of vendor and purchaser summons in this Court were initiated by the defendant. The dispute was resolved and the proceedings were compromised at the beginning of November 2008, when the boundaries of the land to be transferred to the defendant were agreed and the purchase price was reduced by €85,000, in consequence of which the purchase price payable by the defendant was €535,000.

3 4 1.3 Following the compromise, correspondence recommenced between the defendant's solicitors and the plaintiffs' solicitors on title issues in relation to the completion of the sale. An engrossed deed of transfer was furnished by the defendant's solicitors to the plaintiffs' solicitors, together with various documents for re-execution and re-dating with their covering letter dated 26^th November, 2008 and the plaintiffs' solicitors responded on 3^rd December, 2008. The transaction seemed to be progressing towards completion and it was the evidence of Mr. Michael Cullen, the principal in the firm Lombard & Cullen, the solicitors acting for the plaintiffs, that he anticipated completing around 16^th December, 2008. However, by letter dated 16^th December, 2008, which he received on that day, the defendant's solicitors raised the fact that a lis pendens had appeared on a judgment search which they had carried out. The lis pendens had been registered in the Central Office of the High Court on 10^th November, 2008 and it related to family law proceedings in the Circuit Court between Ann Roche (Mrs. Roche), the wife of the first plaintiff, as applicant, and the first named plaintiff, as respondent, which were entitled to the benefit of the in camera rule, but the existence of which Mrs. Roche made public by the registration of the lis pendens. In the letter of 16^th December, 2008 the defendant's solicitors stated that they would require the lis pendens "to be released" and indicated that the "release" required an application to the Master of the High Court. It was also stated in that letter that the defendant's solicitors were in funds to complete the transaction, that they had a bank draft for the balance of the purchase monies available as of 15^th December, 2008. They requested that the sale be completed immediately and threatened the service of a notice to complete. Mr. Cullen's evidence that he first knew of the registration of the lis pendens was when he received the letter of 16^th December, 2008, although he was acting for the first named plaintiff in the family law proceedings and he had entered an appearance to those proceedings in the Circuit Court in September 2008.

4 5 1.4 In any event, the steps taken by the plaintiffs' solicitors to address the existence of the lis pendens with a view to completing the sale and their interaction with the defendant's solicitors were as follows:

5 · By letter dated 17^th December, 2008 the plaintiffs' solicitors informed the defendant's solicitors that they had been in touch with the solicitors for Mrs. Roche and had suggested that funds be retained, presumably by the plaintiffs' solicitors out of the proceeds of sale, pending the resolution of the family law proceedings and that, in consideration of the funds being retained on agreed terms, the lis pendens be vacated by Mrs. Roche's solicitors. In addition, it was suggested to the defendant's solicitors that, having regard to the fact that they were in funds and that they had the closing documents, the sale be completed on the plaintiffs' solicitors undertaking, which they gave in the letter, to hold the entire purchase monies in trust for the defendant's solicitors and the defendant in an interest bearing account until such time as the lis pendens would be removed and evidence of that furnished to the defendant's solicitors. The Christmas vacation then intervened and the plaintiffs' solicitors made very little progress with Mrs. Roche's solicitors until approximately mid-January 2009.

6 · There was no response whatsoever from the defendant's solicitors to the letter of 17^th December, 2008. The next step taken by them was to serve a notice to complete on 28^th January, 2009 on the plaintiffs' solicitors by registered post. That notice called on the plaintiffs to complete the sale in accordance with general condition 40 of the contract and stated that, in default of completion, the defendant would rely on general condition 40 and all other rights and remedies available to him. Issues arose at the hearing as to the validity of that notice to which I will return later.

7 · The response of the plaintiffs' solicitors was contained in a letter of 5^th February, 2009. Two points were made in that letter which require to be recorded. The first was that the defendant would be adequately protected by the undertaking given by the plaintiffs' solicitors in their letter of 17^th December, 2008 and that there was no reason why the sale could not be completed. Further, it was denied that the defendant had any entitlement to seek payment of interest charges from the plaintiffs. Secondly, it was stated that, in any event, the plaintiffs' solicitors had reached agreement with the solicitors for Mrs. Roche and that they had given certain undertakings on the first plaintiff's behalf. They enclosed a copy of a letter dated 4^t...