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Recent Irish Cases
Vendor and Purchaser —Deposit forfeited as a
result of delay in completion.
By an agreement of 1 June 1973 between plaintiffs
and defendants, the defendants agreed to purchase
"Brooklawn", Kimmage
Road West, Dublin for
£235,000, of which £23,500 was to be paid as a deposit,
and the balance on completion. The sale was subject
to special conditions and in particular to full planning
permission being granted before 31 December 1973,
the closing to take place within 21 days after that. If
full planning permission was not obtained before the
end of 1973, the period of completion was to be ex-
tended by six months, provided the defendant purcha-
sers agreed to pay initerest at 3% above Bank interest
rate until actual date of completion.
Planning permission was eventually grpnted subject
to conditions on 5 February 1974, and a letter was sent
by plaintiff's solicitor to defendants' solicitors inform-
ing them of this on 8 February, which was acknowledg-
ed on the 11th. On the 12th February, the plaintiffs'
solicitor rashly informed defendants' solicitors that they
wished to have a reply by return. On 8 March the
plaintiff company solicitors informed defendant com-
pany solicitors that the 21 days had expired on 27 Feb-
ruary; they pointed out that at this stage they consider-
ed time to be of the essence of the contract and stated
that they would deem the final closing date to be 15
March. On 13 March, the defendant's solicitors wrote
to plaintiff's solicitors stating that their clients were
entitled to rely on the 6 months extension, and that
time was not of the essence of the contract. On 14
March plaintiff's solicitors reiterated their previous pos-
ition. On 20 March, defendant's solicitors wrote that
they disagreed with this reiteration, but would obtain
client's instructions.
On 10 June, plaintiff's solicitors informed defendant's
solicitors that the time limit for furnishing requisitions
had expired, and asked that the draft deed should be
sent to them for approval; on 12 June, defendant's
solicitors replied that they were obtaining their client's
instructions. On 25 June, plaintiff's solicitors wrote
stating that their clients insisted that the sale be closed
on 1 July. On 27 June, defendant's solicitors rejected
this and stated that a formal notice would be required
if time was to be made the essence of the contract.
As the sale was not closed, on 2 July plaintiff's sol-
icitors said their clients regarded the deposit paid as
forfeited, and would proceed to deal with the property
as owners. On 3 July defendant's solicitors rejected this
contention, and said they would not release the deposit
receipt without client's instructions.
On 5 July, proceedings were instituted by plaintiff
claiming: —
(1) A declaration that it was agreed that the sale
would be closed 21 days after plaintiff obtain-
ing planning permission.
(2) That defendant has persistently refused and
neglected to close the sale, and consequently the
contract is no longer binding.
(3) That plaintiff is fully entitled to deal with the
property and forfeit the deposit.
The Statement of claim was delivered on 31 July. In
the Defence of 18 November, the defendant denies that
full planning permission for building 62 houses had
been obtained, and that time was at any time of the
essence of the contract. The defence alleged that the
plaintiff had wrongfully repudiated the contract. They
made a counterclaim declaration that the agreement
terminated at latest on 30 June, or in the alternative
that it had been discharged by breach of contract.
The plaintiffs submit that they were ready, willing
and anxious to complete at the proper time, and the
Judge accepts this.
It is clear from the correspondance that both parties
or their solicitors interpreted the contract differently.
Th e Court is satisfied that the closing date specified is
21 days after planning permission has been obtained.
However, there was a genuine dispute between the
parties as to interpretation. The conduct of a party is
not necessarily improper because it was based on a mis-
interpretation of the contract, but in this case the delay
by the defendant was not due to any misinterpretation.
The apparent ambiguity with regard to the closing date
was deliberately being used by defendants to delay
completion, even after planning permission had been
obtained. In the circumstances the plaintiffs were fully
justified in serving notice that henceforth time was
deemed to be of the essence of the contract. N o evidence
was adduced by the defendants that there were any
difficulties in the title, or in the preparation of the con-
veyance, or in the raising of the money.
As the contract in this case was not performed, the
plaintiffs are entitled to forfeit the deposit.
Intermational Securities Ltd. v Portmarnock
Estates Ltd.
— Ham i l t on J. — u n r e p o r t ed — 9
Apr i l, 1975.
Order of Mandamus to repair Waterford Court-
house made absolute.
Application to make absolute a conditional order of
Mandamus granted by Finlay, J. in July 1973. That
order commanded the Minister for Justice to exercise
the statutory duties imposed on him by Section 6 (1)
of the Courthouses (Provisions and Maintenance) Act
1935. This Section provides ithat the Minister may di-
rect ithe Commissioners of Public Works to execute such
reports as may be necessary to put the Court accom-
modation in Waterford into proper repair and con-
dition.
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