Dozens of Irish couples who bought apartments in Spain and claim they were deceived into paying an extra €5,700 on the purchase price will have to sue in the Spanish courts if they hope to recover their money.
Judge Alison Lindsay held in a test case in the Circuit Civil Court yesterday that the Spanish courts had jurisdiction of a claim for damages for alleged breach of contract and alleged deceit, misrepresentation and negligence.
The test case was taken by one of the couples, Stephen and Evelyn Fennell, of Forest Court, River Valley, Swords, Co Dublin, on behalf of 100 other purchasers seeking to recover a total of €570,000 in alleged extra payments as well as damages.
They sued Bayport Properties Ltd, Phibsborough Place, Dublin; Mr Dermot Williams, River Forest, Leixlip, Co Kildare; Mr Paul Clemenson, Churchill Terrace, Sandymount, Dublin; Global Urpi Properties SL, Alicante, Spain; Edo Mark, Alicante; and Playas de Orihuela SA, Alicante.
Judge Lindsay had heard that the Fennells were among 100 couples who, wishing to purchase holiday homes in Spain, had attended an exhibition at Glenroyal Hotel, Maynooth, Co Kildare, in April 2000.
They had arranged to travel to Spain to view a number of properties, and agreed to purchase a €57,000 apartment at Playas de Orihuela, Urbanizacion La Florida, Vivenda Tipo Marbella, Numerok, Alto, Spain.
Judge Lindsay said that, having paid a deposit of €2,500, they then fully paid the purchase price. Afterwards, like the others, they had to pay a further 10 per cent, or €5,700, to conclude their acquisition of the property.
She said the contract - signed in Spain - included a specific and exclusive jurisdiction clause stating that the settlement of any dispute arising would be tried in the Spanish courts.
Judge Lindsay said she was satisfied the Fennells had independent legal advice before entering into the agreement.
She said she was satisfied the "harmful event" pleaded in the proceedings - whereby the developer had allegedly breached the contract in demanding a further 10 per cent before the apartment could be completed - had taken place in Spain.
Judge Lindsay told Mr Raymond Delahunt, counsel for the Fennells, and Mr Barra Faughnan, counsel for the defendants, that the Irish courts had no jurisdiction to hear or deal with the matter.
Judge Lindsay awarded costs against the Fennells.