Sun Fat Chan v Osseous Ltd

• Jurisdiction: Ireland
• Judge: McCarthy J.
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-SC 2412
• Court: Supreme Court
• Docket Number: [S.C. No. 41 of 1991]
• Date: 01 January 1992

SUN v. OSSEOUS LTD

SUN FAT CHAN

PLAINTIFF

.v.

OSSEOUS LIMITED

DEFENDANT

1991 WJSC-SC 2412

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

(41/91)

THE SUPREME COURT

Synopsis:

ACTION

Dismissal

High Court - Inherent jurisdiction - Cause of action - Absence - Contract - Rescission - Contractor's obligations - Cessation - Rules of the Superior Courts, 1986, order 19 - (41/91 - Supreme Court - 30/7/91) - [1992] 1 I.R. 425

|Sun v. Osseous Ltd.|

CONTRACT

Terms

Implied term - Existence - Justification - Parties - Intention - Suggested term not contemplated at time of contract - (41/91 - Supreme Court - 30/7/91) - [1992] 1 I.R. 425

|Sun v. Osseous Ltd.|

HIGH COURT

Jurisdiction

Action - Dismissal - Cause of action - Absence - Inherent jurisdiction - Exercise - (41/91 - Supreme Court - 30/7/91) 1992 1 IR 425

|Sun v. Osseous Ltd.|

PRACTICE

Action

Dismissal - Cause of action - Absence - High Court - Inherent jurisdiction - Exercise - (41/91 - Supreme Court - 30/7/91)

|Sun v. Osseous Ltd.|

Citations:

BARRY V BUCKLEY 1981 IR 306

DOLAN V NELIGAN 1967 IR 247

JUDICATURE (IRELAND) 1877 1877 S27(5)

1 Judgment of McCarthy J.delivered the 30th day of July, 1991. [NemDiss]

2 The Plaintiff agreed to buy from the Defendant a site at Brennanstown Vale, Foxrock, where the Defendant is engaged in a small up-market development. The deposit paid was returnable in certain events. The contract expressly provided as follows:-

3 2 "5. This agreement is subject to the purchaser obtaining full planning approval or full planning permission (hereinafter referred to as "the approval") for the erection of a single private dwelling house upon the subject property.

4 6. The purchaser shall apply to the planning authority for the approval within twelve weeks of the date of sale.

5 7. In applying for the approval, the purchaser shall take account of the guidelines issued by the vendor in respect of the development of its estate at Brennanstown Vale a copy of which is annexed hereto and marked B and no application for planning permission or planning approval shall be made by the purchaser in respect of the subject property without the prior written approval of the vendor of the terms of suchapplication.

6 8. The purchaser shall pursue such application for the approval with all due diligence and shall forthwith notify the vendor upon the issue by the planning authority of its decision to grant or to refuse thesame.

7 9. In the event of the approval not having been obtained by the purchaser within six months from the date of sale then either party may rescind this agreement upon giving to the other party seven days prior written notice of its intention so to do upon the expiration of which notice (provided that the approval shall not have been obtained in the meantime) then this agreement shall be at an end and have no further force oreffect and the deposit shall be refunded to the purchaser but without interest, costs or compensation.

8 10. The closing date shall be seven days after the date of issue of the approval."

9 No such approval was obtained within the six month period. Neither party took any positive action in respect of the contract; the vendor encouraged the purchaser to proceed with an application which succeeded. A third party objected and appealed against the decision to grant permission. The appeal succeeded; permission was refused. Subsequently the vendor on one weeks' notice purported to rescind the contract. The purchaser, the Plaintiff, sued for specific performance of the contract and, amongst alternatives, a declaration that the contract was valid and subsisting. It is conceded, there being no planning approval or permission, that specific performance cannot be obtained. The Statement of Claim contended that the option to rescind was for the benefit of the...