O'Sullivan v Weisz

• Jurisdiction: Ireland
• Court: High Court
• Judge: FINNEGAN P.
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IEHC 74
• Date: 18 March 2005
• Docket Number: Record No. 791p/2004

[2005] IEHC 74

THE HIGH COURT

Record No. 791p/2004

O'SULLIVAN v WEISZ

BETWEEN

John O'Sullivan

Plaintiff

and

Ronald Stuart Weisz

Defendant

WEILDING v SANDERSON 1897 2 CH 534

HICKMAN v BERENS 1895 2 CH 638

CUMMING v INCE 1847 11 QB 112

BINDER v ALACHOUZOS 1972 2 AER 189

O'DUFFY v LAW SOCIETY OF IRELAND UNREP KELLY 3.12.2004 2004 IEHC 372

PRACTICE AND PROCEDURE:

Compromise of action

Agreement and compromise sought to be set aside by plaintiff - Plaintiff to institute fresh proceedings seeking substantially same relief - Grounds of duress - Duress can encompass economic duress - Application by defendant to have fresh proceedings struck out as abuse of process - Carroll v Law Society (Unrep, HC, Kelly J, 2/5/2001) distinguished - Possibility that compromise would be set aside - Inappropriate to strike out proceedings - Defendant's application refused (2004/791P - Finnegan P - 18/3/2005) [2005] IEHC 74

O'Sullivan v Weisz

JUDGMENT delivered by

FINNEGAN P.

1 on the 18th day of March 2005 .

2 This is a motion by the defendant seeking the following reliefs -

3 a "(a) Vacating the lis pendens registered by the plaintiff in this action on the 3rd February, 2004 on the grounds that the proceedings had been brought and pursued in bad faith.

4 (b) The costs of the application."

5 The facts giving rise to the present proceedings appear from the Affidavits filed in the matter of which there are four by the Defendant and two by the Plaintiff and the exhibits thereto.

6 The Plaintiff who is a farmer engaged in a number of transactions in which he borrowed monies. The first of these was with the Wise Finance Company in respect of an advance of IR£100,000 on foot of a commitment letter dated the 11th August, 1997. The actual sum advanced was IR£80,000. The copy of the commitment letter available to me has copied poorly but as I understand the position the deduction of IR£20,000 is accounted for by the deduction of a commitment fee and prepayment of the instalments of IR£2,000 per month for the seventh to twelfth month of the agreement. The loan was secured on three folios, folio 18746, folio 18848 and folio 27377F of the Register County Tipperary. The Plaintiff retained a solicitor in relation to the loan transaction. The Plaintiff failed to make repayment in accordance with the terms of the loan and proceedings for possession were instituted against him. He consulted a different solicitor in relation to these proceedings. On the 24th July, 2000 the defendant obtained an order for possession on consent together with an order for costs but with a stay on those orders for three months. That order remains in place.

7 Over the months following that judgment the plaintiff made attempts to obtain alternative finance. Early in 2001 he entered into negotiations with one Tony O'Meara which resulted in terms being agreed but not reduced to writing and signed. Under these terms Mr O'Meara was to purchase the lands in folios 18746 and 27377F and 18848 of the Register County Tipperary for the sum of IR£165,000. Further the Plaintiff was given an option to repurchase the lands within thirty days of the date of the contract for IR£195,000 or within three hundred and sixty five days at the price of IR£206,000.

8 Mr O'Meara did not proceed with the transaction. Mr O'Meara withdrew from the proposed agreement and the defendant was told of this on the 3rd August, 2001. The defendant then told the plaintiff that he personally would be willing to enter into such an agreement with him and this was in fact done on the 8th August 2001. Again the Plaintiff instructed a solicitor in relation to this transaction. The agreement which was signed between the Plaintiff and the defendant differed from that proposed between the plaintiff and Mr O'Meara in that the period for the first option was increased to sixty days. At the expiration of the sixty day period the sale to the defendant was completed by correspondence between solicitors in November and December, 2002.

9 The Plaintiff then instructed a different solicitor and on the 12th December, 2002 proceedings were instituted by him naming the defendant herein and the Wise Finance Company Limited as Defendants and seeking by way of relief rescission of the agreement for sale between the Plaintiff and the Defendant and an order vacating the High Court order for possession. These proceedings were compromised. At the date of the compromise the Defendant had entered into an agreement to sell two of the folios to a Mr Tighe....