TMT Digital centre Ltd v Grehan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 27 November 2020 |
| Neutral Citation | [2020] IEHC 628 |
| Docket Number | [2019 No. 4318 P] |
| Court | High Court |
| Date | 27 November 2020 |
AND
AND
[2020] IEHC 628
Twomey
[2019 No. 4318 P]
THE HIGH COURT
This is a case in which, the fourth and fifth named defendants, who are receivers (the “Receivers”) appointed by National Asset Loan Management Limited (“NAMA”), seek to have the proceedings issued by the plaintiffs (collectively referred to as “TMT”) struck out pursuant to the inherent jurisdiction of the court, on the grounds that they are bound to fail.
TMT has its registered office at 12 Camden Row, Dublin 8 and operates a business whereby it offers high specification office space and ancillary services. The dispute between the parties concerns the purchase by TMT of an office block for its business in Maynooth, Co. Kildare.
The dispute centres around the relocation of car parking spaces, which had been granted by the Receivers to TMT in a business campus in Maynooth. TMT claims that the relocation of these car parking spaces, from a surface car park to a basement car park, has resulted in the parking spaces being unusable.
The key issue, for this strike-out claim, is whether in light of the clear contractual exclusions of liability and the statutory exclusions of liability for the receivers referenced below, the proceedings should be struck out as bound to fail. A key factor in this Court's determination that the proceedings are not bound to fail is the fact that there is a High Court decision, albeit reversed on appeal, in which a similar claim regarding the same receivership regarding similar car park spaces was upheld.
TMT's proceedings against the Receivers relate to TMT's purchase of a Unit (“Block B” or “Unit B”) and associated car parking spaces in Maynooth Business Campus (the “Business Campus”) from the receiver of the first named defendant, (“Mr. Ray Grehan”). This receiver, who is not a party to these proceedings, is Mr. Martin Ferris (“Mr. Ferris”). He was appointed by Bank of Scotland Ireland. The contract for the sale of Block B is dated 23rd December, 2014 and is between TMT and Mr. Ray Grehan acting through his receiver, Mr. Ferris.
The Receivers, who are the subject of these proceedings, were appointed as Statutory Receivers on the 3rd May, 2011 over certain assets of Mr. Ray Grehan, the second named defendant (“Mr. Danny Grehan”) and the third named defendant (“Glenkerrin”), together the “Developers”. The sixth named defendant (“The Management Company”) is the management company for the common areas in the Business Campus.
Since the Developers owned certain common areas in the Business Campus, over which the Receivers had been appointed, the Receivers granted to TMT, on 17th February, 2015, the Lease of Easements (the “Lease of Easements”) which included the grant of 212 parking spaces. The Receivers agreed to do this in order to facilitate the sale of Block B in the Business Campus by Mr. Ferris to TMT. On 31st December, 2018, Docmay Limited, the second named plaintiff acquired the title and interest in Block B and the related car parking rights.
In particular, the dispute between the parties centres around the terms of this Lease of Easements between the Receivers and TMT. This is because on 22nd May, 2019, pursuant to Clause 10 of the Third Schedule of the Lease of Easements, the solicitors for the Receivers gave notice to solicitors for TMT of the relocation of some of the 212 car parking spaces, i.e. 94 surface car parking spaces, to a basement car park in the Business Campus, in the following terms:
“On behalf of Glenkerrin Homes Unlimited Company (in receivership), Raymond Grehan and Daniel Grehan all parties acting by Michael McAteer and Paul McCann in their capacity as Statutory Receivers only, we hereby formally notify you and your client that the car parking spaces allocated to Block B are now relocated to the spaces as identified on the attached surface car park map and basement car park maps and thereon marked with the colour orange (“Notice”).
Please treat this correspondence as Notice in accordance with clause 10 of the Third Schedule of the Lease of Easements dated 17 February, 2015.”
While this notice is dated 22nd May, 2019, it is relevant to note that the Receivers had, on 29th September, 2016, allocated these same 94 surface car parking spaces to the seventh defendant (“Jomaijo”) as part of the sale of Units D & E of the Business Campus pursuant to the terms of a separate lease of easements dated 29th September, 2016.
However, in separate proceedings heard in the High Court, i.e. Ray Grehan, Danny Grehan, Glenkerrin Homes Unlimited Company (In Receivership), Michael McAteer and Paul McCann v. Maynooth Business Campus Owners’ Management Company CLG [2019] IEHC 829 (the “ Unit C Proceedings”), the High Court found that the Receivers knew that the basement car park was unusable (para. 48), that the car park was not compliant with Building Regulations as constructed (at para. 117), that the Receivers were aware of the structural issue (para. 107), and that that there is a probability that the entire structure will become unsafe in 10 years or so (para. 114(e)). Although the High Court decision was reversed on appeal ( [2020] IECA 213), this finding regarding the structural state of the basement car park was not reversed by the Court of Appeal (Costello, Noonan and Murray JJ.), which noted at para. 2 of its judgment that:
“The underground car park on the campus requires extensive work to remedy serious deficiencies in its current condition.”
Against this background, TMT's substantive proceedings against the Receivers are based on its claim that the relocation of the car parking spaces should be to a location of ‘ equal amenity and value to’ TMT's pre-existing spaces and which ‘ has been certified as structurally sound and safe and fit for purpose’ and not to an unusable basement. Accordingly, it seeks declaratory and injunctive relief to this effect.
The Receivers’ application to strike out TMT's proceedings is based on the claim that, even if TMT has a cause of action regarding the relocation of the car parking spaces to an unusable basement (which is denied by the Receivers on the basis, inter alia, of caveat (or lessee) emptor), TMT's remedy is against the Developers, for whom the Receivers are agents. In particular, the Receivers rely on the express exclusions of personal liability for the Receivers contained in the Lease of Easements as well as the exclusions of liability contained in s. 149 of the National Asset Management Agency Act 2009 (the “NAMA Act”) referenced below. On this basis, they claim that the proceedings should be struck out as bound to fail.
As this application relies on, inter alia, the interpretation of the Lease of Easements, it is necessary to set out the provisions of the Lease of Easements, which was executed by the Receivers, in some detail. Before doing so, reference will be made to the Contract for Sale in relation to Block B, executed by Mr. Ferris as receiver of the assets of Mr. Ray Grehan.
The Contract for Sale of Block B is dated 23rd December, 2014 (the “Contract”) and is between TMT and Mr. Ray Grehan, who is stated to be ‘ acting by his receiver Martin Ferris’. The Lease of Easements executed by the Receivers, to which reference has already been made, is document number 17 in the list of title and planning documents in Section A of the Documents Schedule to the Contract. In addition, the Deed of Appointment of the Receivers dated 3 May 2011 is listed in Section B of the Documents Schedule to the Contract.
Section 4.3 of the Contract explains that the original grant of easements was, through an apparent oversight, not signed by Mr. Ray Grehan and Mr. Danny Grehan and therefore:
“it is being proposed by [Mr. Ferris] and agreed with the other parties on title to surrender both the Grant of Easements and Deed of Covenant and grant new forms of both documents to join in the legal owners in the form of documents listed at A17 – A19 of the Documents Schedule. The Purchaser shall accept the form of the documents as furnished and shall not raise any further query or requisition in relation to same.”
Clause 4.4 of the contract states:
“Copies of the documents referred to in the Documents Schedule have been made available for inspection by the Purchaser or the Purchaser's solicitors prior to the Closing Date and the Purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased the Subject Property with full knowledge of the contents of the documents furnished.”
Clause 6.7 states that:
“Subject as hereinafter provided the Purchaser shall be deemed to have satisfied itself prior to the Date of Sale in relation to the actual state and condition of the Subject Property including all easements, rights, reservations, exceptions, privileges, covenants, restrictions, rents, taxes, incidents of tenure and other liabilities affecting the Subject Property and shall raise no objection, requisition or enquiry in this regard.”
Clause 12 states:
“CAR PARK SPACES
The Purchaser shall have the exclusive use to 212 car parking spaces (Spaces) within the Estate the location of which can be varied from time to time. The Purchaser is referred to the letter from Grant Thornton as receiver of Glenkerrin Homes at A14 of the Documents Schedule which confirms approval of the current location of the Spaces on behalf of Glenkerrin Homes and to the plan confirming the current...
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