Stud Managers Ltd v Marshall

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 29 April 1985
• Neutral Citation: 1985 WJSC-HC 1558
• Docket Number: No. 623P/1985,[1985 No. 623P]
• Court: High Court
• Date: 29 April 1985

1985 WJSC-HC 1558

The High Court

No. 623P/1985

STUD MANAGERS LTD v. MARSHALL

Between/

Stud Managers Limited

Plaintiff

and

Elizabeth Mary Marshall

Defendant

Citations:

BARRY V BUCKLEY 1981 IR 306

GOODSON V GRIERSON 1908 1 KB 761

LAND ACT 1965 S12

LAND ACT 1965 S45

LAW SOCIETY GENERAL CONDITIONS OF SALE 1978

LAW SOCIETY GENERAL CONDITIONS OF SALE 1978 (9)

RSC O.19 r28

Synopsis:

ACTION

Stay

Claim - Striking out - Interlocutory order - Sale of land - Specific performance - Purchaser's action - Purchaser's failure to complete within reasonable period - Non-compliance with vendor's completion notice - Valid rescission by vendor - Vendor's motion for stay - (1985 No. 623P - Costello J. - 29/4/85).

Stud Managers v. Marshall

PRACTICE

Action

Stay - Claim struck out - Interlocutory order - Sale of land - Specific performance - Purchaser's action - Purchaser's failure to complete within reasonable period - Non-compliance with vendor's completion notice - Valid rescission by vendor - Vendor's motion for stay - (1985 No. 623P - Costello J. - 29/4/85).

Stud Managers v. Marshall

1 Judgment of Mr. Justice Costello delivered on the 29th day of April, 1985 .

2 Motion by defendant to stay action for Specific Performance - Court's inherent jurisdiction - Orde dismissing action when it is clearly established that defendant/vendor has validly exercised right of rescission.

3 The defendant is the owner of a valuable stud farm at Ballygallon, Instioge, County Kilkenny. In the early part of 1984 negotiations for its sale to the plaintiff company were successfully concluded and on the 7th March the defendant's solicitor forwarded to the plaintiff's solicitor drafts of an option to purchase, of a contract for sale and copies of the documents of title referred to in the First Schedule of draft contract. In doing so he pointed out that the plaintiff would be required to apply under section 45 of the Land Act, 1965 for the consent of the Land Commission to the transfer (the plaintiff company being a company registered in the Isle of Man).

4 The contract for sale is dated the 15th June, 1984 and the 1978 Edition of the Law Society's "General Conditions of Sale" was used by the parties. The purchase price was £365,000 sterling and the special conditions provided that all payments under the contract were to be in that currency. The contract provided for the payment of a deposit on the signing of the contract of £36,500 sterling but there was a delay in its payment and this did not occur until the middle of July. The closing date was to be the 22nd November, 1984 and Special Condition 2(b) provided that in this respect time was to be of the essence of the contract. Clause 9 of the General Conditions provided that Requisitions on Title were to be sent within ten days of the delivery of the documents of title. But this clause was not complied with and no Requisitions were served until after the delivery of a twenty-eight day Completion Notice on the 26th November.

5 The consent of the Land Commission under section 12 of the Act to a sub-division was required. This was obtained and the purchaser's solicitor informed of this fact by letter of the 9th November. Operating Clause 28 of the Contract the vendor's solicitor served the twenty-eight day notice to which I have just referred and as the purchasers failed to close in the time specified in it they were informed by letter of the 31st December (wrongly dated the 31st January) that the sale had been rescinded and the deposit forfeited. The purchasers contested the vendor's right to rescind and issued on the 22nd January, 1985 a plenary summons claiming specific performance of the contract and damages. By notice of the 14th March, 1985 the defendant has asked that the claim be dismissed as being frivolous and vexatious, under Order 19 Rule 28. Alternatively, counsel urged that the action be dismissed under the Court's inherent jurisdiction to do so.

6 My views on the Order referred to and the Court's inherent powers were expressed in Barry v. Buckley (1981) I.R. 306. I pointed out that the Court can only make an Order under the Rule when the pleadings disclose no reasonable...