Sorensen v MMS Medical Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Eileen Creedon |
| Judgment Date | 12 October 2018 |
| Neutral Citation | [2018] IEHC 802 |
| Docket Number | [RECORD NO: 2013/1722 P] |
| Court | High Court |
| Date | 12 October 2018 |
[2018] IEHC 802
THE HIGH COURT
Creedon J.
[RECORD NO: 2013/1722 P]
AND
Lease – Arrears of rent – Breach of contract– Plaintiffs seeking arrears of rent – Whether the lease made between the first plaintiff and the defendant also comprises office premises
Facts: The plaintiffs, Mr and Ms Sorenson, commenced an action by way of plenary summons in which they claimed the following: (i) a declaration that the lease made between the first plaintiff as lessor and the defendant, MMS Medical Ltd, as lessee (the first lease) pertaining to the premises known as Unit 2, Matthew Hill Business Park, Lehenagh Beg, Co. Cork (the unit is shown coloured white on the annexed map), for a term of 35 years from the 8th October 1992 also comprises, by virtue of the subsequent variation agreed by the aforesaid parties in or about October 1998, the office premises shown coloured yellow on the map; (ii) if necessary, specific performance of the agreement made between the first plaintiff and the defendant for the variation of the first lease; (iii) if necessary, a declaration that the defendant is estopped from denying that it is the lessee under the first lease (as varied); (iv) if necessary, a mandatory injunction directing the defendant, its directors, officers, servants and agents to comply with the covenants and obligations of the lessee under the first lease (as varied); (v) judgment in the sum of €3,156.72 in respect of arrears of rent due to the 17th January 2013 pursuant to the first lease (as varied); (vi) judgment in respect of such further sums in respect of rent payable pursuant to the first lease (as varied) as may become due and owing subsequent to the commencement of the proceedings; (vii) interest pursuant to the first lease (as varied) and/or pursuant to statute; (viii) a declaration that the plaintiffs are the lessors and the defendant is the lessee of the premises known as Unit 1, Matthew Hill Business Park, Lehenagh Beg, Co. Cork and shown coloured red on the map for a term of 35 years from the 17th February 1995 and subject to the provisions set forth in a draft lease agreed between the first plaintiff and defendant on or about the 28th May 1996 (the second lease); (ix) if necessary specific performance of the agreement made between the first plaintiff and the defendant for the grant of the second lease; (x) if necessary, a declaration that the defendant is estopped from denying that it is the lessee under the second lease; (xi) if necessary a mandatory injunction directing the defendants, its directors, officers, servants and agents to comply with the covenants and obligations of the lessee under the second lease and/or the agreement for the grant of the second lease; (xii) judgment in the sum of €13,206 in respect of arrears of rent due to the 17th January 2013 pursuant to the second lease and/or the agreement for the grant of a second lease; (xiii) judgment in respect of such further sums in respect of rent payable pursuant to the second lease and/or the agreement for the grant of the second lease as may become due and owing subsequent to the commencement of the proceedings; (xiv) interest pursuant to the second lease and/or the agreement for the grant of the second lease and/or pursuant to statute; (xv) damages for breach of contract; (xvi) all necessary and consequential orders, accounts, directions and inquiries; (xvii) further or other relief; and (xviii) costs.
Held by the High Court (Creedon J) that the defendant holds the White Unit and the Yellow Unit for a term of years that will expire on the 7th October 2027 under the terms contained in the 1992 lease and that the defendant holds the Red Unit for a term of years that will expire on the 16th February 2030 under the terms contained in the 1995 lease subject to a composite rent of €64,000 per annum plus VAT.
Creedon J held that arrears of rent to include interest in the sum of €239884.07 was to be paid by the defendant to the plaintiff. The court further ordered that the sum of €426.00, being the cost of stamping the 1992 lease, be paid by the defendant to the plaintiff.
Relief granted.
This action was commenced by the plaintiffs by way of plenary summons in which they claim the following: -
(i) A declaration that the lease made between the first named plaintiff as lessor and the defendant as lessee (the first lease) pertaining to the premises now known as Unit 2, Matthew Hill Business Park, Lehenagh Beg, Co. Cork,(this unit is shown coloured white on the map annexed hereto) for a term of 35 years from the 8th October 1992 also comprises, by virtue of the subsequent variation agreed by the aforesaid parties in or about October 1998, the office premises shown coloured yellow on the map annexed hereto.
(ii) If necessary, specific performance of the agreement made between the first named plaintiff and the defendant for the variation of the first lease.
(iii) If necessary, a declaration that the defendant is estopped from denying that it is the lessee under the first lease (as varied).
(iv) If necessary, a mandatory injunction directing the defendant, its directors, officers, servants and agents to comply with the covenants and obligations of the lessee under the first lease (as varied).
(v) Judgment in the sum of €3,156.72 in respect of arrears of rent due to the 17th January 2013 pursuant to the first lease (as varied).
(vi) Judgment in respect of such further sums in respect of rent payable pursuant to the first lease (as varied) as may become due and owing subsequent to the commencement of the proceedings herein.
(vii) Interest pursuant to the first lease (as varied) and / or pursuant to statute.
(viii) A declaration that the plaintiffs are the lessors and the defendant is the lessee of the premises now known as Unit 1, Matthew Hill Business Park, Lehenagh Beg, Co. Cork and shown coloured red on the map annexed hereto for a term of 35 years from the 17th February 1995 and subject to the provisions set forth in a draft lease agreed between the first named plaintiff and defendant on or about the 28th May 1996 (the second lease).
(ix) If necessary specific performance of the agreement made between the first named plaintiff and the defendant for the grant of the second lease.
(x) If necessary, a declaration that the defendant is estopped from denying that it is the lessee under the second lease.
(xi) If necessary a mandatory injunction directing the defendants, its directors, officers, servants and agents to comply with the covenants and obligations of the lessee under the second lease and /or the agreement for the grant of the second lease.
(xii) Judgment in the sum of €13,206 in respect of arrears of rent due to the 17th January 2013 pursuant to the second lease and / or the agreement for the grant of a second lease.
(xiii) Judgment in respect of such further sums in respect of rent payable pursuant to the second lease and /or the agreement for the grant of the second lease as may become due and owing subsequent to the commencement of the proceedings herein.
(xiv) Interest pursuant to the second lease and / or the agreement for the grant of the second lease and / or pursuant to statute.
(xv) Damages for breach of contract.
(xvi) All necessary and consequential orders, accounts, directions and inquiries.
(xvii) Further or other relief.
(xviii) Costs.
The plenary summons was issued on the 20th day of February 2013. Ultimately the plaintiffs issued a notice of motion dated 11th day of January 2017 seeking judgment in default of defence. The motion was heard by the court on the 18th day of July 2017 when the motion was struck out and the defendants were given a further opportunity to serve their defence. The matter was set down for trial on 31st October 2017.
The properties which are the subject matter of this dispute are commercial units situated in a small commercial park in Cork known as the Matthew Hill Business Park. This business park is owned by the plaintiffs, the two commercial units in question have been in occupation by the defendants since the 1990s, it is the legal nature of this occupation that is in dispute between the parties.
The plaintiffs'case is that both units are held by the defendants under 35-year full repairing and insuring leases with five – year rent reviews. The first lease which is referred to as the White Unit and is referred to in para. 1 of the plaintiff's plenary summons is a unit known as Unit No. 2, Matthew Hill Business Park Lehenagh Beg, Co. Cork. The plaintiffs assert that this unit is subject to a lease for a term of 35 years from the 8th October 1992, and that it also comprises by virtue of a subsequent variation agreed by the aforesaid parties in or about October 1998, the office premises shown coloured yellow on the relevant map. The lease in respect of the White Unit is executed by both parties. While the defendants took up occupation in 1992, the plaintiffs say that there was some delay in the execution of the lease but that it was executed by both parties and sent by the plaintiffs to the defendants executed by both parties in October 1994 for the purposes of stamping and registering. The plaintiffs say that the defendants had failed to stamp that document and that the plaintiffs have now attended to the stamping of said document and the payment of additional penalties despite it being the defendants” obligation to do so. The defendants accept that they hold the White Unit under the 35 – year lease as agreed and this is not in dispute between the parties.
In January / February 1995, there were further discussions between the parties as MMS Medical required additional space. The additional space agreed between the parties at that time is referred to as the Red Unit. The...
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