Judgment
Title: | Courtney -v- McCarthy |
Neutral Citation: | [2007] IESC 58 |
Supreme Court Record Number: | 70/07 |
High Court Record Number: | 2005 3000 P |
Date of Delivery: | 12/04/2007 |
Court: | Supreme Court |
Composition of Court: | Geoghegan J., Kearns J., Finnegan J. |
Judgment by: | Finnegan J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | Geoghegan J. | | Kearns J. | Finnegan J. | | | |
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THE SUPREME COURT
Record No. 70/2007
Geoghegan J.
Kearns J.
Finnegan J.
BETWEENANNE B. COURTNEY
PLAINTIFF/RESPONDENT
AND
THERESE McCARTHY
Judgment of Mr Justice Finnegan delivered on the 4th day of December 2007
The Facts
Anne B. Courtney the plaintiff/respondent (hereinafter the “vendor”) is the registered owner of the lands comprised in Folio 11394F in the Register of Freeholders, Co. Clare. She offered part of the lands containing 6.6 acres for sale by public auction on the 4th March 2005 and the defendant/appellant (hereinafter called “the purchaser”) was the successful bidder and signed a contract in respect of the same. The matter did not proceed smoothly due to default on the part of the purchaser. There was delay in paying the deposit. In correspondence the purchaser sought to vary the conditions of the contract and she was in delay throughout. On the 22nd April 2005 a completion notice in accordance with condition 40 of the general conditions of sale was served and interest was claimed in accordance with condition 25 of the general conditions of sale. The notice to complete expired on the 20th May 2005 and after such expiry without prejudice to the notice to complete the vendor indicated a willingness to complete. However the sale did not complete and by letter dated 30th May 2005 the vendor’s solicitors informed the purchaser’s solicitors that the plaintiff was rescinding the contract, that the deposit was forfeited and that the lands would be re-sold. On this appeal it is accepted by the purchaser that the contract had been rescinded and the deposit forfeited.
By letter dated the 2nd June 2005 the vendor’s solicitors wrote to the purchaser’s solicitors as follows:
“Strictly without prejudice to our letter of the 30th May 2005 and the notices therein, we would advise that our client is prepared to complete with your client strictly subject to the following:-
1. Completion must take place on or before Friday next 3rd June 2005.
2. Interest will be payable in accordance with the contract for sale.
3. The open space area may be revised as per the map as furnished by John Neilan and Associates under cover of the 6th May 2005 which was previously agreed by our client. Your client’s architect will now have to mark up this map as our client had agreed previously to have her architect mark up the map only to be told that your clients had changed their minds as to the revision of the map.
4. The contract for sale provides for the access to Ballybeg Road being granted when required and our client is prepared to grant same now provided that this does not hold up completion. Please furnish draft grant of right of way together with copy map showing the route for same for approval. We would point out that the very reason that the contract for sale provided that this right of way would be granted in due course if required, is that the local authority are likely to specify the route of such access roadway and where it comes out unto Ballybeg Road. We are pointing this out to you and would suggest that you advise your client accordingly.
5. No wayleave will be considered to Jack McCarthy’s land until completion has taken place. We have indicated on a number of occasions that our client is agreeable to consider same subject to sight of the proposed route of same, however, same does not form part of the contract for sale and will be considered once completion has taken place. In this regard, we have asked on a number of occasions for a map showing the route of same, but have received nothing. This can be looked into further post-completion.
6. Your client’s arrangements with Jack McCarthy and Mr Fitzgibbon are of no concern or interest to our client and no monies will be paid by our client for rights to which he is entitled under the contract for sale. Special condition 12 of the contract for sale will stand.
7. A postal completion is no longer appropriate and completion must take place at this office.
We note from your letters of 26th May 2005 and 1st June 2005 that your client is prepared to complete the contract for sale which, strictly without prejudice, is also what our client wants, however, this letter and the proposals therein are strictly without prejudice to the forfeiture and rescission notice which has already been served on you.
We should be obliged if would take your client’s instructions to the above, strictly without prejudice, proposal and revert by return failing which we confirm that we have authority to accept service of proceedings in this matter.”
It is sufficient to say that the matters dealt with in paragraphs 3, 4, 5 and 6 represented an attempt to deal with variations to the contract sought by the purchaser. The sale did not complete by the deadline set. The vendor by letter dated 16th June 2005 indicated a willingness to complete on the 17th June 2005 but again completion did not take place.
Before describing what next happened it is necessary to identify the persons involved and their relationship to the transaction. Mr Fitzpatrick is the vendor’s auctioneer. Mr Hickey is a partner in the firm of solicitors having carriage of the sale on behalf of the vendor but is also married to the vendor’s daughter Anne Courtney junior who is a tax consultant by profession. Mr Fowler is a partner with Mr Hickey in the vendor’s solicitors. Mr Gavin is the purchaser’s solicitor. Of significance is the circumstance that Mr Hickey and Ms Courtney were on holiday in Kerry from the 28th or 29th June and returned to Dublin on the 11th July to attend an appointment in Crumlin Hospital with their daughter’s consultant at 10.30 a.m. Mr Gavin was abroad until the 7th July and returned to his office on the morning of 8th July.
Mr Fitzpatrick, the auctioneer, gave evidence that throughout the course of the transaction the purchaser and Ms Courtney were in contact with him. On the 4th July 2005 he received a telephone call from Ms Courtney. She instructed him to contact the vendor with a view to closing the sale on Monday the 11th July without prejudice to “what was going on between the respective solicitors” and instructed him not to enter into correspondence. He made contact with the purchaser immediately and conveyed to her Ms Courtney’s instructions to him. Ms Courtney gave evidence of the phone conversation with Mr Fitzpatrick but on her account she had asked him to arrange for a meeting for roughly 2 o’clock on the 11th July so that the parties could talk. She heard nothing back from Mr Fitzpatrick and on returning to Dublin on the 11th July she did not know whether or not anything was to happen that day.
There was thus a conflict on the evidence as to whether the meeting was to close the sale or to talk and see if the sale could be progressed. Mr Fitzpatrick kept a note of his telephone conversation with Ms Courtney in the following terms:
“Phone call from A.C. Tell purchaser to arrange to close sale Monday next 2 p.m. in accord with contract. No correspondence. Informed Therese McCarthy.”
The learned trial judge’s finding on the evidence is set out by her as follows:
Mr Gavin returned from holiday abroad on the evening of 7th July and attended at his office on the morning of Friday 8th July. He was contacted by the purchaser and some time after 9 o’clock on the 11th July he rang the vendor’s solicitors’ office and asked for Mr Hickey. He was told that he was on holidays and he then asked for Mr Fowler to be told that Mr Fowler would not be there that day. Mr Gavin said that he would ring back on Monday. By fax he then forwarded maps to be attached to the wayleave agreement and made it clear that he would be satisfied with an undertaking from the vendor’s solicitor to furnish a deed granting the same with the original maps attached.
First thing on Monday 11th July Mr Gavin again telephoned the vendor’s solicitors office. He was told that Mr Hickey was on holidays. He asked for Mr Fowler and was told that he was in court and would be there all day. He explained the urgency of the phone call in that there was a 2 o’clock deadline and asked that Mr Fowler ring him. He had arranged for the balance of the purchase money to be transferred to the account of the vendor’s solicitor and his bank confirmed to him before lunch that the monies were then going through. At 11.30 a.m. Mr Fowler telephoned Mr Gavin. Mr Gavin informed Mr Fowler that the balance of the purchase monies were being transferred that day. Mr Fowler told him that he was in court and could not complete that day but would so the following day. Mr Gavin did not make arrangements to travel to Dublin on the 11th July as his expectation was that the matter could be completed by post. However if closing at the vendor’s solicitor’s office was required he could have arranged for some one from his office or his sister, a solicitor practising in Dublin, to attend on his behalf and this would not have presented a problem. At 12.30 p.m. Mr Gavin received a phone call from Mr Hickey who enquired as to why he was not in Mr Hickey’s office to complete the transaction. This was the first he had heard that it was to be a closing at the vendor’s solicitors office and explained that to Mr Hickey. He told Mr Hickey that the balance of the purchase money was being transferred at that moment. Mr Hickey said “it is too late now”. Mr Gavin offered to release the money there and then and Mr Hickey replied “it is too late, the sale is off”. Following that telephone conversation Mr Gavin, by fax, authorised the vendor’s solicitor to release the balance of the purchase monies to the vendor. In reply to this Mr Hickey sent a fax confirming that the sale was rescinded and the deposit forfeited and that the matter was at an end.
The Agreement for Sale
The agreement for sale is in the Law Society of Ireland Form 2001 edition. General Conditions 24, 25 and 26 deal with completion and interest in the following terms:
“24 (a) The Sale shall be completed and the balance of the Purchase Price paid by the Purchaser on or before the Closing Date.
(b) Completion shall take place at the Office of the Vendor’s Solicitor.
25. (a) If by reason of any default on the part of the Purchaser, the purchase shall not have been completed on or before the later of (a) the Closing Date or (b) such subsequent date whereafter delay in completing shall not be attributable to default on the part of the Vendor
(i) the Purchaser shall pay interest to the Vendor on the balance of the Purchase Price remaining unpaid at the Stipulated Interest Rate for the period between the Closing Date (or as the case may be such subsequent date as aforesaid) and the date of actual completion of the Sale. Such interest shall accrue from day to day and shall be payable before and after any judgment and
(ii) the Vendor shall in addition to being entitled to receive such interest, have the right to take the rents and profits less the outgoings of the Subject Property up to the date of the actual completion of the Sale
(b) If the Vendor by reason of his default shall not be able, ready and willing to complete the Sale on the Closing Date he shall thereafter give to the Purchaser at least five Working Days prior notice of a date upon which he shall be so able ready and willing and the Purchaser shall not be before the expiration of that notice be deemed to be in default for the purpose of this Condition provided that no such notice shall be required if the vendor is prevented from being able and ready to complete or to give said notice by reason of the act or default of the Purchaser.
(c) The Vendor shall not be entitled to delay completion solely because of a dispute between the parties with regard to liability for such interest or as to the amount of interest payable PROVIDED ALWAYS that such completion and the delivery of any Assurance on foot of these Conditions shall be had strictly without prejudice to the right of the Vendor to pursue his claim for interest.
26. The submission of an Apportionment Account made up to a particular date or other corresponding step taken in anticipation of completing the Sale shall not per se preclude the Vendor from exercising his rights under the provisions of Condition 25 and in the event of such exercise the said Apportionment Account or the said other corresponding step shall (if appropriate) be deemed not to have been furnished or taken, and the Vendor shall be entitled to furnish a further Apportionment Account.”
Relevant to the appeal are two special conditions - special conditions 11 and 12 which provide as follows:-
“11. In the event that Clare County Council or An Bord Pleanala, as the case may be, in granting planning permission for development of the Sold Lands require that access to the Sold Lands be routed to Ballybeg Road in lieu of the Rocky Road then the Vendor shall grant to the Purchasers for the benefit of the Sold Lands the non-exclusive right in common with the the Vendor and all others have like rights from time to time for the benefit of the Sold Lands and every part thereof to go pass and repass at all times and for all purposes with or without animals, carts or vehicles over that part of the Retained Lands as shall be made available by the Vendor to the Purchaser to enable the Purchaser to construct a road footpath grass margins and kerbs upon the Retained Lands together with services thereunder for the purpose of enabling the Purchaser to have access to the Sold Lands from the Ballybeg Road so that the purchaser may develop the Sold Lands. It is agreed that the ownership of the roads footpaths grass margins and kerbs together with services thereunder will remain with the Vendor until such time as they are taken in charge by the local authority. The Purchaser shall enter into an indemnity in relation to the repair, maintenance and insurance of all such roads footpaths grass margins kerbs and services, etc. as are constructed upon the Retained Lands until taken in charge by the local authority and shall indemnify the vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given.
12. The Purchasers shall within the Perpetuity Period at their own cost and expense construct on the Sold Lands roads, footpaths, grass margins, kerbs and services for the purposes of the development of the Sold Lands and shall bring such roads, footpaths, grass margins, kerbs and services to a point two metres inside the boundary of the Retained Lands such that the Retained Lands are connected by such roads, footpaths, grass margins, kerbs and services to the public roadway and services to enable the Vendor to connect into such roads, footpaths, grass margins, kerbs and services for the benefit of the Retained Lands and every part thereof. The Purchaser shall enter into an indemnity in relation to the repair, maintenance and insurance of all such roads, footpaths, grass margins, kerbs and services, etc. as are constructed upon the Sold Lands until taken in charge by the local authority and shall indemnify the Vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given.”
The Pleadings and The Issues before the High Court
The proceedings were instituted by the purchasers seeking a declaration that the agreement for sale of 4th March 2005 had been validly determined, that the deposit had been validly forfeited and that the purchaser holds no contractual or other right, title or interest in the lands agreed to be sold. The defence and counterclaim delivered by the purchaser consists of denials and pleads that the course of conduct between the vendor and the purchaser had the effect that there was a further concluded oral agreement for completion of the sale on the 11th July 2005. By her counterclaim the defendant sought specific performance of the agreement for sale dated 4th March 2005 or in the alternative of the agreement complete on 11th July 2005. The purchaser delivered an amended defence and counterclaim in which she claimed the following additional relief:-
“If necessary a declaration that the plaintiff is estopped from relying on the purported rescission of the contract of 4th March 2005 or forfeiture of the defendant’s deposit in respect of same by reason of the defendant’s reliance on the plaintiff’s conduct of negotiations leading to a revival of the said agreement and waiving the purported rescission of same by agreeing to closure of the sale on 11th July 2005 by which date the defendant had acted to her detriment by paying the full amount of consideration under contract to the plaintiff.”
On the issues before the High Court the learned High Court judge held that the agreement for sale had been validly determined by the vendor and the deposit validly forfeited and indeed this was accepted at the hearing before this court by the purchaser. The correspondence of 2nd June 2005 and 27th June 2005 were characterised by the purchaser in her pleadings as “negotiations … for the purpose of reinstating the sale to the defendant … on certain terms.” The learned trial judge held that the purchaser never intimated a willingness to complete the contract in accordance with those terms and accordingly the original contract remained determined and the vendor was no longer obliged to complete it. The events which occurred between 4th and 11th July, the learned trial judge held, did not create a new contractual relationship between the vendor and the purchaser and any question of compliance with the Statute of Frauds (Ireland) Act 1695 or part performance did not arise. She so found on the basis that the purchaser did not meet the vendor’s requirements by closing on the 11th July. The purchaser’s solicitor failed to turn up to complete, the purchaser did not tender or evince an intention to pay interest, in relation to special condition 11 the right of way remained at large although the vendor had conceded the purchaser’s request for a grant of the same at closing and that there was no commitment by the vendor to comply with special condition 12.
The learned trial judge then considered the events between 4th and 11th July 2005 in terms of estoppel. The test for estoppel as set down by the Supreme Court in Doran v. Thompson Ltd [1978] I.R. 223 at 230 by Griffin J. is as follows:-
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no promise or assurance had been made by him, and that he may be restrained in equity by acting inconsistently with such promise or assurance.”
See also Ryan v. Connolly [2001] 1 I.R. 627 at 632 per Keane C.J.
The learned trial judge found that Mr. Fitzpatrick informed the purchaser that the vendor would close the contract in accordance with the contract at her solicitors’ office at 2 p.m. on 11th July 2005. The learned trial judge held that the purchaser did not meet this requirement in two particulars in the following terms:-
1. As to interest -
“If completion took place in accordance with the contract, the defendant would have been liable for interest. She never evinced any willingness to pay interest and therefore as I have found she was not willing or prepared to complete on 11th July 2005 in accordance with the terms of the contract.”
2. As to the requirement for a face to face closing –
“The plaintiff’s case is that the requirement for a face to face closing in the plaintiff’s solicitors offices in Dublin was imposed to obviate the difficulties which had been encountered in the transaction previously, for example, the issue of the location of the access to Ballybeg Road. The defendant’s solicitor was not in Dublin at 12.30 p.m. on 11th July 2005 and it is reasonable to assume that he could not have been in Dublin by 2 p.m. Given what had transpired previously and what was still outstanding between the parties I doubt if that would have been a practical solution. In dealing with the contractual situation I sidestep the issue of the failure of the defendant and her solicitor to appear at the plaintiff’s solicitors offices at the appointed hour. However, in the context of the application of the principles of equitable estoppel, if all other things were equal, in other words, if before the appointed hour the defendant had indicated a willingness to complete in accordance with the terms of the contract including the payment of interest, given the breakdown of communication within the plaintiff’s solicitors office and the failure to give Mr. Gavin any response either on 8th July or on the following Monday morning I think the equity of the situation would have been in favour of the defendant. However that is entirely hypothetical”.
The learned trial judge’s findings on the issue of estoppel are as follows:-
“(a) the plaintiff, through her agent Mr. Fitzpatrick, expressly represented to the defendant in a clear and ambiguous manner that, if the defendant was able and willing to complete the purchase in accordance with the terms of the contract in her solicitors offices at 2 p.m. on 11th July she would complete.
(b) That representation was intended to affect the legal relations between the plaintiff and the defendant and to be acted on by the defendant, although, as I have concluded, it did not create a new contractual relationship. In my view, equity would not have permitted the plaintiff to resile from that representation between 4th and 11th July 2005. While not conceding that an estoppel could not arise at all, counsel for the plaintiff submitted that at most there was merely a suspension of the plaintiff’s legal rights. In my view, the effect of the representation was the plaintiff’s legal rights were suspended in the period in question.
(c) While, following the representation, the defendant acted and she suffered a detriment in the sense that she drew down the sum of €1,620,000 from AIB and became liable on that sum for a period of approximately one week, in my view, it would not be correct to say that she acted and suffered that detriment on foot of the representation. The representation was that the plaintiff would close on terms of the contract, which included the payment of interest. Indeed in advancing her claim the defendant recognised that if she was successful she would be liable to pay interest, at any rate for the period 8th April 2005 to 11th July 2005. The position adopted by the defendant and acted upon was that she was closing on her own terms and, in particular that she was not liable for interest under the contract and could leave the precise definition of the access to Ballybeg Road at large until after completion.
(d) Given the failure of the defendant to indicate an ability and willingness to complete in accordance with the terms of the contract by 2 p.m. on 11th July 2005 the plaintiff’s representation was spent and she was entitled to revert to reliance on her legal rights arising out of the termination of the contract”.
For these reasons the issue of estoppel was determined in favour of the vendor.
The Appeal
Before this court the purchaser’s case was exclusively based on estoppel and in this regard it is necessary to examine in some detail the evidence given in the High Court:-
(i) The evidence of Mr. Hickey
He was on holidays in Kerry from 28th or 29th June. He left his partner Mr. Fowler to deal with the file and memoed to him that while he was away he was to contact the witness if anything occurred on the file. Prior to 11th July he had no communication from Mr. Fowler. To his knowledge his wife, Anne Courtney, made contact with Mr. Fitzpatrick the auctioneer. As far as he was aware the purchaser had been in contact with Mr. Fitzpatrick looking for a last chance to close. There were a number of conversations between his wife and Mr. Fitzpatrick: Anne Courtney conveyed to Mr. Fitzpatrick that one last effort to complete might be made without prejudice to the vendor’s position. This would require a face to face meeting in his office and 2 o’clock on the11th July was stipulated. This was to fit in with an appointment for his daughter with a consultant in Dublin on that morning. On 11th July between 11.30 a.m. and 12.15 p.m. he received a telephone call from Mr. Fowler. He was told that Mr. Gavin, the purchaser’s solicitor, was looking for him. Mr. Fowler had returned Mr Gavin’s call and told him that he knew nothing about the matter and that Mr. Hickey would be dealing with it. As a result he telephoned Mr. Gavin at about 12.30 or 12.45 p.m. His evidence of that phone conversation appears from the transcript as follows-
‘I started off with really, Colm, where are you, I expected to see you in my office. He said I am tied up or I am out of the office but the money is going to be electronically transferred. I said Colm – it was made clear that the only way this could happen is a meeting in the office and you are not there, you know, we have had enough and, you know, that’s the end of the manner there is nothing that we can do from here’.
Mr. Gavin asked what would it take to deal with the matter that day and Mr. Hickey replied that he would have to take instructions and that the monies would have to be released. There was no discussion on interest. He obtained instructions from the client. He went to his office and then saw the correspondence from Mr. Gavin of the 11th July. He then wrote his letter of 11th July to Mr.Gavin indicating that the matter was at an end.
In cross examination Mr. Hickey said that he was in a position to complete on 11th July. His understanding of the conversation between Anne Courtney and Mr. Fitzpatrick was that Mr. Gavin and his client would appear at his office to progress the matter and see if it could be completed. He wanted Mr. Gavin at the completion personally. The witness believed that Mr. Fowler had told him that Mr. Gavin was going to be in court and could not deal with the matter on the 11th. He had made it clear in his letter of 2nd June that a postal closing was out of the question. Subsequent to the 11th July a contract was entered into with a member of the vendor’s family for the sale of these lands together with other lands for €2,600,000. Mr. Hickey was asked what was blocking progress on 11th July and replied “Colm Gavin’s absence”. As of the 11th July it was far from clear to Mr. Hickey whether the purchaser had any intention of complying with condition 12 of the contract.
The witness is the plaintiff’s daughter and the wife of Mr. Hickey. She is a tax consultant specialising in property investment. She was in regular contact with Mr. Fitzpatrick. He telephoned her to know if there was any way in which the vendor would consider one last chance and having spoken to the vendor it was decided that one last chance would be given to the purchaser. She contacted Mr. Fitzpatrick in early July. She told them that without prejudice to the original contract the vendor would complete and that the purchaser should arrange a meeting for roughly 2 o’clock with her solicitor and that the parties could talk. She heard nothing back from Mr. Hickey. She did not know if the matter would close on 11th July but hoped that it would. She did not agree with Mr. Hickey’s manuscript note in that she would not have said the word close but rather that they should meet to see if the matter could be progressed.
He received a telephone call from Anne Courtney on 4th July 2005. She asked him to contact the purchaser with a view to closing the sale on Monday 11th July without prejudice to what was going on between the respective solicitors and that she did not want any correspondence. He was to ask the purchaser to contact her solicitor to make arrangements to close the sale at 2 p.m. on Monday 11th July at the office of the vendor’s solicitor. He spoke to the purchaser immediately. He told her that there was an opportunity to close the sale in accordance with the terms of the contract and that this was without prejudice. On a later day but before 11th July the purchaser asked what was the position with regard to the open space and what was the position with regard to the wayleave for the sewerage and he informed her that that as far as he was concerned they were agreed in principle, there was not a problem with them provided the mapping was agreed in both places and he did not expect a problem. He had discussed these matters with Mr. Hickey on an ongoing basis.
In cross examination he agreed that the wayleaves were not a sticking point between the parties. He did not know what was going on in relation to interest and it was not raised with him. It was an issue which was bound to raise its head many months later. He was aware that Mr. Hickey was on holidays and he asked Ms. Courtney who would deal with the closing and was told that Mr. Fowler would do so. He told the purchaser that Mr. Fowler would be dealing with the closing.
The purchaser gave evidence. She is a management consultant. Her father is a building contractor and property developer and own lands adjoining the lands agreed to be sold. She was buying the property on her own behalf and not on behalf of her father. At the time she was working in Clare in premises called ‘The Kings’, five bars and a restaurant, owned by her father. After the contract had been terminated she was in constant touch with Mr. Fitzpatrick. On 4th July 2005 Mr. Fitzpatrick told her the deal is back on again and that it was to close on 11th July at 2 p.m. as per the original contract, no conditions. The wayleaves and open space were not a sticking point. After the conversation with Mr. Fitzpatrick she spoke with her father who in turn spoke to Mr. Hickey and she understood that no interest would be payable. If interest was payable it would have been paid. She would have asked her father to help. She contacted Mr. Gavin on 5th July and instructed him to work towards a closing. She contacted the bank and arranged the balance of the purchase money. It was quite clear in her discussion with Mr. Fitzpatrick on 4th July that what was to take place on 11th July was a closing. On 11th July Mr .Gavin told her of his conversation with Mr. Fowler and of his conversation with Mr. Hickey. So far as she was concerned there were no outstanding issues on 11th July. While it was her understanding that no interest would be payable, if it was, it would be paid.
In cross examination the witness agreed that the vendor was insisting on the contract but being co-operative on the matters arising under special conditions 11 and 12. However the arrangements for the 4th July were on the terms of the contract. With regard to interest on 4th July Mr. Fitzpatrick told her that completion was as per the contract and from this she understood that what was payable was €1,800,000. She could not write to clarify because of the terms stipulated – no correspondence. This was also her understanding of conversations which she had with Mr. Fitzpatrick after 4th July. Mr. Fitzpatrick did tell her that the completion had to be in Dublin. Issues surrounding special condition 12 would not have delayed the completion.
(v) Mrs. Anne Courtney (the vendor)
Her evidence essentially was that she did not get personally involved in the transaction but left everything to her solicitor Mr. Hickey. On 11th July she told Mr. Hickey to do whatever he thought fit. She believed that the purchaser was to attend the closing and the reason the sale did not complete was that the purchaser did not turn up on time.
The witness is the manager of the AIB Bank, Bank Place, Ennis, Co. Clare. The balance of the purchase money was transferred to the account of John Shields and Company, the vendor’s solicitor, at 1.12 p.m. on 11th July. The transaction was instantaneous in that funds leave the account of the transferor and are posted to the accountant of the transferee at the same time.
Mr. Gavin is a solicitor and acted for the purchaser. He was away from his office and returned on 7th July. After 9 a.m. on 8th July he telephoned the vendor’s solicitors and asked for Mr. Hickey to be told that he was on holidays. He then asked for Mr. Fowler and was told that he would not be there that day. He said he would ring back on the Monday but that the matter was extremely urgent. His understanding at that time was that the sale was to be completed on 11th July and in accordance with the terms of the original contact. With regard to special condition 11 he would accept whatever access was being offered. With regard to interest his client had told him that no interest was payable. He was hoping to speak to Mr. Fowler regarding interest. He felt interest would probably be payable and he would have advised his client to pay it. On Monday 11th July first thing he again telephoned the vendor’s solicitors. He asked for Mr. Hickey and was told that he was on holidays. He asked for Mr. Fowler and was told that he was in court and would be there all day. He explained the urgency to the receptionist as he had been told that there was a 2 o’clock deadline, that he was arranging for monies to be put through and he asked her to have Mr. Fowler ring him. This was shortly after 9 o’clock. He arranged with the bank for the monies to be transferred. As far as he was concerned there was no difficulty about deeds or other documents. Normally such transactions are closed by post. At 11.30 a.m. he received a phone call from Mr. Fowler and he told him that he was putting the monies through. Mr. Fowler told him that he was caught in court and could not complete at that time but that he would do it the following day and the witness agreed with this. He did not travel to Dublin on 11th July because normally he would complete such a sale by post. If a face to face closing was required he would either have travelled himself or someone from his office would have travelled but this was not done because there was nobody available in the vendor’s solicitors’ office to confirm what was to happen. He could have had his sister who is a solicitor in Dublin complete on his behalf as she had done in previous cases. At about 12.30 p.m. he received a telephone call from Mr. Hickey who asked him why he was not in the office to complete the transaction. He replied that this was the first time he understood that it was to be a face to face completion but that he had been trying to get through to the vendor’s solicitors and could not communicate with anybody. Mr. Hickey told him that it was too late as he wanted the money to go back with his mother-in-law to Kerry. Mr. Gavin told him that he was quite happy to release the money. Mr. Hickey replied that it was too late and that the sale was off. The witness had been in practice as a solicitor for some 38 years. If the client had not got the interest he would have arranged it with AIB, his own bank, and debited his office account with the amount of the same and paid it over. He would have got it back from the purchaser’s father whom he knew and trusted. He would have asked his own bank to do an immediate credit transfer from his office account. Had the meeting taken place at 2 p.m. on 11th July the transaction would have completed. In cross examination the witness said that he would not have made any issue about special condition 12 of the contract but would have been delighted to complete. With regard to the right of way all he was entitled to was what was clearly set out in the contract and that is what he expected to get on 11th July. He agreed that in earlier correspondence he had disputed the vendor’s entitlement to interest. His instructions from his client were that the matter was to be completed by 2 o’clock on 11th July. In practice interest is regularly sought and not paid or the sale is closed without prejudice to interest being charged. A lot of solicitors never charge interest. In this case if it was sought it would have been paid and he had advised his client that it would have to be paid. He had been unable to speak with either Mr. Hickey or Mr. Fowler concerning interest. The witness was unclear as to whether his client had told him that the sale was to be closed in Dublin. He had failed to communicate with either Mr. Hickey or Mr. Fowler and if they had told him that he would have to be there at 2 o’clock he would have been there to complete. He received a telephone call from the purchaser while in England concerning the appointment to complete on 11th July. The position then bore very little relationship to what had gone before. As of 2nd June there were matters outstanding but they were not outstanding as at the 7th July. As a result of his conversation with Mr. Fowler on 11th July he understood that time had been extended until the following day to deal with the matter. He may well have told the purchaser that he did not need her at the closing and he never brought a client to a closing. The availability of the monies was all that mattered. He did not need his client at the closing as there were no issues or problems and he had instructions to complete on terms of the original contract. He had made no arrangements on the morning of 11th July to travel to Dublin but could have been in Dublin or could have had some one deal with the matter on his behalf and that was not a problem. The reason he did not make arrangements to be in Dublin at 2 o’clock was because of the telephone conversations on 7th July and the 11th July with the office of the vendor’s solicitor when neither Mr Hickey nor Mr Fowler were available He could not get any communication from anybody who was dealing with the transaction. On 11th July he did not get an opportunity to say that he would travel to Dublin. Had he the opportunity to speak to someone he would not have required an undertaking in relation to the grant of rights of way as he was aware that all he was getting was what was in special condition 11 of the contract. He did not expect interest to be waived at the completion but he would probably have requested. He had not been sent a closing statement for the 11th July. Special condition 12 was of no consequence to him and all he wished was to complete. He did not have an opportunity to tell Mr. Hickey this in the phone conversation.
Mr. Fowler did not give evidence.
Conclusions
The learned trial judge made the following primary findings of fact:
1. As of the 4th July 2005 the original contract remained rescinded.
2. On the 4th July 2005 the plaintiff indicated her willingness to complete the contract in accordance with its terms provided that there was a closing at the offices of the plaintiff’s solicitors at 2 p.m. on 11th July 2005.
3. This amounted to a clear and unambiguous representation, promise or assurance sufficient to found an estoppel. The defendant acted upon the same by altering her position to her detriment in drawing down the finance to complete and accordingly it was not open to the plaintiff to revert to the previous legal relations between the parties.
4. On the 8th July 2005 Mr Gavin was unable, through no fault of his, to contact either Mr Hickey or Mr Fowler.
5. On the 11th July 2005 at 11.30 a.m. Mr Gavin received a telephone call from Mr Fowler and was told that the transaction could not complete on that day but would complete on the following day.
6. On the 11th July at 12.30 p.m. Mr Gavin received a call from Mr Hickey in which he was told that the sale was off. This was confirmed by letter sent by fax later that day.
The effect of the telephone conversation between Mr Gavin and Mr Fowler on the 11th July 2005 at 11.30 a.m. is that the promise or assurance given by the vendor was for her convenience (albeit the convenience was that of her solicitors) altered by substituting for the 11th July 2005 the 12th July 2005 for completion. In the circumstances of this case it is immaterial whether the effect was that the sale should be completed at 2 p.m. on the 12th July or at a time to be agreed or at a time to be stipulated by the vendor’s solicitors.
The learned trial judge held that the plaintiff’s legal rights were suspended in the period in question which she took as being until 2 p.m. on the 11th July 2005 and that after that date and time it was not unconscionable for the plaintiff to rely on her legal rights. I differ from the learned trial judge in that I am satisfied that the vendor’s entitlement to resile arose only on the 12th July 2005 and whether at 2 p.m. on that date or at a time to be agreed or at a time to be stipulated by the vendor is immaterial. However the vendor did not await 2 p.m. on the 11th July but purported to resile at 12.30 a.m. on the 12th July 2005. It is quite clear on the evidence that the reason this occurred was a lack of communication between Mr Fowler and Mr Hickey, the former not having informed Mr Hickey that he had told Mr Gavin that the sale could not be completed on the 11th July but would have to be completed the following day.
A number of matters weighed with the learned trial judge. Mr Gavin did not attend at the appointed hour to complete the sale. His intention had been to close the sale by post until his conversation with Mr Hickey at 12.30 p.m. He had not been informed of this requirement by the purchaser. Had he been aware of the requirement on the 11th July his evidence was that he would have attended. If the time available to him was insufficient to travel to Dublin he could have arranged for a solicitor in Dublin to attend the closing on his behalf. The balance of the purchase price had already been transferred electronically. I am satisfied that under the original concession by the vendor the purchaser was entitled to attend to complete until 2 p.m. on the 11th July and there was no entitlement in the purchaser to bring this time forward and withdraw the concession at 12.30 p.m. on that day. A fortiori the date for completion having been extended by Mr Fowler to the 12th July, there was no entitlement in the vendor to withdraw her concession at 12.30 p.m. on the 11th July.
The learned trial judge held that the vendor did not tender or otherwise evince a willingness to discharge the interest due under the contract. However it was not a term stipulated by the vendor that she should do so. I am satisfied that there was no obligation on her to do so. Her obligation was to complete in accordance with the terms of the contract. It was conceded before this court that there was no bona fide dispute as to interest and it may be in these circumstances that general condition 25(c) has no application. In these circumstances the purchaser’s entitlement was to present at the closing and to complete paying interest or to suffer the consequence of the vendor resiling. However the purchaser was not afforded this opportunity by virtue of the conduct of the vendor in purporting to resile at 12.30 p.m. on the 11th July in advance of the time stipulated 2 p.m. and indeed in advance of the altered date the 12th July 2005.
I am satisfied that the vendor was not entitled so to resile from the promise or assurance given as varied in the telephone conversation between Mr Gavin and Mr Fowler. Mr Gavin’s evidence as to the contents of that phone conversation was uncontroverted: Mr Fowler did not give evidence.
As to the other matters which were in issue between the parties at earlier stages of their dealings, namely a commitment to comply with special condition 12 of the contract for sale and whether a grant of right of way to Ballybeg Road pursuant to special condition 11 of the contract for sale should be furnished at completion or left over till later, these were not nor could they be in issue at completion as a term of the concession made by the vendor was that there should be completion in accordance with the contract.
Having regard to the foregoing I would grant the defendant the order for specific performance which he seeks. Further the purchaser having made the concession in this court that interest was payable from the closing date up to the 11th July 2005 there is no dispute as to the liability to pay interest. It will not be open to the purchaser to rely on general condition 25(c) and to seek to close without paying interest and a condition of the order for specific performance accordingly will be that interest will be paid for that period at completion.