Engineering firm fails to halt action over rent arrears

Business had to move out of leased premises after snowstorm collapsed roof

A scaffolding and engineering firm which had to move out of its leased premises after a snowstorm collapsed the roof has failed to halt a High Court action by the landlord for alleged wrongful refusal to return after the building was repaired and for rent arrears.

Mr Justice Denis McDonald said Instant Upright Ltd, which provides instant aluminium access towers and and walkway solutions, had not satisfied him it was appropriate to dismiss the action by Airscape Ltd, the landlord of the building in Park West, Clondalkin, Dublin, which was that was damaged in March 2018 as a result of build up of snow on the roof.

In its action, Airscape claimed, among other things, the Instant Upright misrepresented to it, when it moved out of Park West to an alternative premises in Citywest after the storm, that this was temporary and it would return. It also claimed the defendant had received payments as a result of business interruption insurance. By March 2020, Airscape said, some €2.3 million was due in rent.

The court heard the Park West repair work was completed almost a year later (April 2019) but a dispute followed about whether the repairs were sufficient with Instant Upright claiming Airscape only carried out very minor mechanical and electrical works. It could not resume manufacturing if the premises was not fully reinstated, it claimed.


The lease provided for a situation where if the premises was unfit and not repaired within two years the tenant could terminate the lease. In March 2020, Instant Upright served such a notice on the basis it had not been substantially reinstated within two years.

Airscape brought legal proceedings including getting a one-side-only-represented interim order that prevented Instant Upright from reducing its assets below €3.6 million amid a claim the defendant may dispose of assets.


Among its claims, Airscape said the defendant had no intention of returning to Park West and had “singularly failed” to disclose to Airscape that it had taken out a ten-year lease on the new Citywest premises.

Instant Upright strongly rejected all claims and in July 2020 the freezing injunction on its assets was discharged following a hearing but the main proceedings remained. It also argued it did genuinely intend to return to Park West and would have sub-let or re-assigned the Citywest lease when it had returned.

Instant Upright asked the court to dismiss the entire case as an abuse of process and that it was bound to fail, among other things.

Airscape opposed the application.

Mr Justice McDonald said Instant Upright was “understandably aggrieved” that the freezing order caused it considerable inconvenience and alleged reputational damage.

However, he was not satisfied to dismiss the case. It was not sufficiently clear, at this point in the proceedings, that Airscape’s claim was bound to fail, he said.