Judge says court 'littered' with performance contracts claims

THE COMMERCIAL Court is being littered with claims for specific performance of contracts, including many contracts for the sale of lands for development, a judge has said.

Among such cases which came before Mr Justice Peter Kelly yesterday was a claim by two businessmen for an order requiring a construction company to honour an alleged agreement reached two years ago for the €39.5 million sale of development lands at Youghal, Co Cork. Another company, Dasnoc Ltd, is facing claims totalling €17 million over two contracts entered into by it.

In other proceedings, Leo Mohan and Conor Mohan, Ailesbury Road, Dublin, are being sued by Emmet Memery, Lower Leeson Street, Dublin, for specific performance of a contract of June 2007 to purchase for €4 million an interest in 1-2 Victoria Buildings, Haddington Road, Dublin.

Both sides have agreed mediation may be appropriate in the case, Mr Justice Kelly was told, and he adjourned it for four weeks.

The judge dealt with 14 new cases in the Commercial Court list yesterday, seven of which sought specific performance of contracts. He also made directions relating to some 60 other cases on the way to full hearing.

Among the new cases were proceedings by John Coleman, Kilcronin, Whitechurch, Co Cork, and Michael A Coleman, Tower Bridge, Blarney, Co Cork, against Murphy Construction (Carrigtwohill) Ltd, arising from an agreement of October 31st, 2006.

The Colemans say that under the agreement, they agreed to sell lands at Bawnmore, Magners Hill and Parkmountain, Youghal, to the company for €39.5 million.

Mr Justice Kelly heard that €30 million of that sum was to have been paid by November 2006 and that amount had been paid in accordance with the contract. However, the balance - €9.5 million - was to have been paid by last January, but remains outstanding.

The Colemans initiated High Court proceedings against Murphy Construction earlier this year. Yesterday their counsel, Hugh O'Neill SC, applied to have the case admitted to the Commercial Court with the intention of having it "fast-tracked". The application was opposed by Gavin Ralston SC, for the company, who said the case should continue in the High Court as pleadings had closed and no urgency had been demonstrated before this.

Mr Justice Kelly said that, given the pressure on the Commercial Court list and the delay in bringing the application to admit the case to that court, he would refuse to admit it. While there had been negotiations between the sides, the application to transfer the case could still have been made, he said.

The judge did transfer to the commercial list proceedings in which CMS Developments wants an order requiring four businessmen and a company to perform an €11 million contract under which CMS constructed a ground- and first-floor retail facility at Castle Demesne, Tralee, Co Kerry.

CMS's action is against Niall Fleming, Killarney, Co Kerry; Cornelius Nyhan, Bandon, Co Cork; Martin Nyhan, Ballinspittle, Co Cork; Patrick Lynch, Beaufort, Killarney and Cloonbeg Developers Ltd, Tralee, Co Kerry.

CMS claims it entered into a contract with the defendants on July 28th, 2004. Because CMS owned 20 per cent of the site in question, the company said it was understood the defendants would be liable for 80 per cent of the cost of constructing the facility.

CMS says it completed the development on December 15th, 2005, at which point the defendants owed it some €9.08 million of the total €11.3 million cost of the development. It claims the defendants have failed to pay and, with VAT, some €11 million is now owing.

CMS claims it funded the building works by bank borrowings and the failure of the defendants to pay has exposed it to significant interest repayments on those borrowings.

In another case, an order is being sought requiring Dasnoc Ltd, Beacon Court, Sandyford, Dublin, to honour an agreement to buy lands at Clondalkin, west Dublin, for €11.4 million.

Helen Cahillane, as personal representative of the late Daniel Cahillane and Ann Richards, Ballybane, Clondalkin, claims Dasnoc agreed in writing on October 15th, 2007, to buy the lands. She claims the sale was to have completed by April 1st, 2008, at the latest but Dasnoc had to date paid only €2.295 million of the amount due.

In a separate action against Dasnoc, Patrick and Eileen Conway, Kilbride House, Baldonnel, Co Dublin, want an order for specific performance of a contract of August 23rd, 2007, for the sale for €6 million of a house and 15 acres at Kilbride.

They claim a completion notice was served on Dasnoc on April 1st last, but the defendant had failed or refused to complete the sale. Both cases against Dasnoc were transferred to the list and adjourned to facilitate talks between the sides.