Ronan Mcnamee and Another v Estherfield Ltd and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrett |
| Judgment Date | 01 April 2014 |
| Neutral Citation | [2014] IEHC 205 |
| Court | High Court |
| Date | 01 April 2014 |
[2014] IEHC 205
THE HIGH COURT
BETWEEN
AND
AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607 2002 1 ILRM 381 2001/1/68
HARRISRANGE LTD v DUNCAN 2003 4 IR 1 2002/12/2982
PRENDERGAST v BIDDLE (ORSE MORE O'FERRALL) UNREP SUPREME 31.7.1957
MOOHAN & BRADLEY T/A BRADLEY CONSTRUCTION v S & R MOTORS (DONEGAL) LTD 2008 3 IR 650 2007/42/8816 2007 IEHC 435
DUBLIN DOCKLANDS DEVELOPMENT AUTHORITY v JERMYN STREET LTD & BLACK TIE LTD UNREP CLARKE 1.6.2010 2010/13/3225 2010 IEHC 217
QUARRYVALE TWO LTD & QUARRY VALE THREE LTD v BEERE UNREP O'NEILL 14.12.2012 2012/39/11779 2012 IEHC 546
Summary Judgement – Rent – Costs – Interest – Tenant – Lease – Planning – Consideration – Landlord - Unauthorised Development of Premises – Planning Law
Facts: This case concerned an application for summary judgement brought by the plaintiff”s in respect of rent which they claimed was owed to them jointly and severally by Esterfield Limited, the first named defendant, and Hickey”s Pharmacy Limited, the second named defendant, under a lease and licence arrangement pursuant to which the second defendant operates a pharmacy on the plaintiffs” premises in Dublin. By indenture of lease dated 26 th March 1992, Dublin City Properties Limited, as landlord, and Spellbound Limited, as tenant, entered into a 35-year lease in respect of the premises referred to above. The plaintiffs acquired the premises from Dublin City Properties Limited on 28th January, 2003. By virtue of the lease and a subsequent licence entered into between the plaintiffs, Spellbound Limited and the defendants, on 3rd April, 2003, the defendants were jointly and severally liable for rents owing under the lease. Certain rents had not been paid and the defendants raised a number of defences to the claim and contended that the matter should have been remitted for a plenary hearing. The defences raised were as follows: firstly, the defendants disputed the amounts claimed; secondly, the defendants contended that an allegedly unauthorised development by the plaintiffs at a premises that does not adjoin the demised premises would adversely affect the business operated at the demised premises; and thirdly, they disputed that they could be found liable in these proceedings for amounts of rent that became owing after the notice of motion grounding these proceedings were issued. Based on the evidence, the court found that the amounts sought by the plaintiffs by way of outstanding rent was correct and that of the defences raised, only those pertaining to the planning and the recovery of post-notice of motion sums could be considered.
Held by Justice Barrett in respects of the planning law issue that the issue raised by the defendants was more in the nature of a cross-claim, rather than a defence to summary proceedings. Having, examined judicial precedent on the issue, Justice Barrett reasoned that no set-off in equity was available. Taking the defendants case at its height, Justice Barrett reasoned that even if a claim in respects of a purportedly unauthorised development at a property owned by the plaintiffs but not adjoining the demised premises was entirely successful, the matter was so unconnected to the issue of rent owing under the lease pertaining to the demised premises as not to yield any right of set-off in equity. Consequently, the court determined that the plaintiffs” rights to recover outstanding rent should not be postponed until the conclusion of any plenary session in which the substance and strength of an as yet barely formulated counterclaim of uncertain plausibility was tested. In respects of claims for rent arising after proceeding commences, the defendants disputed that they could be found liable for any rent that became owing after the notice for motion grounding proceedings had been issued. Jurisprudence showed the defendant to be mistaken in that contention. Adopting the reasoning endorsed in the Jermyn Street and Quarryvale cases, Justice Barrett determined that the claims for post-notice of motion arrears had arisen out of circumstances similar to and associated with the causes of action raised in the endorsement of the claim on the summary summons: what was being sought was simply more rent owing under the same lease and licence arrangements. Thus, in terms of procedural efficiency and the avoidance of unnecessary cost, Justice Barrett reasoned that it would be absurd if the court was to hold that only rent owing at the time of issuance of these proceedings could be claimed and that the commencement, hearing and determination of fresh proceedings in which precisely the same issues as have arisen before the Court would need to take place before later- owing rents could be recovered by the plaintiff. Consequently, for these reasons, the court did not consider that the summary proceedings should be referred to a plenary hearing and granted judgement to the plaintiffs for the amount sought, plus interest and costs.
JUDGMENT of Mr. Justice Barrett delivered on the 1st day of April, 2014
1. This is an application for summary judgment brought by the plaintiffs, Mr. and Ms. McNamee, in respect of rent that they claim is owed to them jointly and severally by Estherfield Limited, the first named defendant, and Hickey's Pharmacy Limited, the second named defendant, under a lease and license arrangement pursuant to which Hickey's Pharmacy Limited operates a pharmacy on the plaintiffs' premises at the junction of Grafton Street and Duke Street in Dublin City.
2. By Indenture of Lease dated 26 th March, 1992, Dublin City Properties Limited, as landlord, and Spellbound Limited, as tenant, entered into a 35-year lease in respect of the premises referred to above. The plaintiffs acquired the premises from Dublin City Properties Limited on 28 th January, 2003. The second-named defendant is currently in occupation of, and operates a pharmacy on, the premises. By virtue of the lease and a subsequent licence entered into between the plaintiffs, Spellbound Limited and the defendants, on 3 rd April, 2003, the defendants are jointly and severally liable for rents owing under the lease. Certain rents not having been paid, the plaintiffs have commenced the instant proceedings. The defendants have raised a number of defences to the claim and contend that this is a matter that ought to be remitted to plenary hearing. In essence, the defences raised are as follows: first, the defendants dispute the amounts claimed; second, the defendants contend that an allegedly unauthorised development by the plaintiffs at a premises that does not adjoin the demised premises will adversely affect the business operated at the demised premises; and third, they dispute that they can be found liable in these proceedings for amounts of rent that became owing after the notice of motion grounding these proceedings issued.
3. Based on the evidence contained in the pleadings, the court finds that the various amounts sought by the plaintiffs by way of outstanding rent are correctly accounted for. That means of the three defences raised to these summary proceedings, only those as to planning and the recovery of post-notice of motion sums survive for consideration.
4. The hurdle that must be surmounted by the defendants as regards obtaining leave to defend at plenary hearing is a low one. As Hardiman J. stated in Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 I.R. 607 at 623:-
"In my view, the fundamental questions to be posed on an application such as this remain: is it 'very clear' that the defendant has no case? Is there either no issue to be...
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