The Gazette 1975

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: —

(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. 176

(1) A declaration that it was agreed that the sale would be closed 21 days after plaintiff obtain- ing planning permission.