[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Curling v. Walsh [1987] IEHC 35 (23 October 1987) URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_35.html Cite as: [1987] IEHC 35

[New search] [Printable RTF version] [Help]

Curling v. Walsh [1987] IEHC 35 (23 October 1987)\

THE HIGH COURT

Record No:3571P/1984

BETWEEN:

NORAH CURLING

Plaintiff

and

PATRICK WALSH

Defendant

Judgment of the President of the High Court delivered on the day of the 23^rd day of October 1987

By an agreement in writing made the 20th day of September 1982 between the Defendant of the one part and the Plaintiff of the other part, the Defendant agreed to sell to the Plaintiff and the Plaintiff agreed to purchase from the Defendant the premises therein described as

"all that and those the dwelling house and premises known as Mall House, Cahir, in the County of Tipperary more particularly delineated for the purposes of identification on the map attached hereto and edged in red situated in the parish of Cahir, Barony of If fa and Of fa West and County of Tipperary.

For the sum of £49,000 subject to the terms and conditions therein set forth."

In these proceedings, the Plaintiff alleges that it was an express or alternatively an implied term of the said agreement that the said premises were in a good and habitable state of repair and free from any structural defect.

In the alternative they contended that the Defendant expressly warranted to the Plaintiff, prior to the making of the said agreement for-the purchase of the premises the said dwelling house was in a good and habitable state of repair and free from any structural defect and also free from liability to regular flooding. It is alleged that contrary to the said representation and in breach of the said implied term, the said premises is radically infected by dry rot and wet rot, that major structural weakening has taken place in flooring joists, stair timbers, window lintels and window timbers and elsewhere and that the infection is so severe that extensive and radical work will be necessary merely to ascertain the full scale of the infestation.

It is alleged that the said infection was or ought to have been apparent to the Defendant, his servants or agents prior to the sale of the said premises and was concealed by him from the Plaintiff.

The Plaintiff consequently claims damages for breach of contract, fraudulent or negligent misrepresentation and unjust enrichment.

It is denied on behalf of the Defendant that it was -either an express or an implied term of the said agreement that the premises were in a good and habitable state of repair or that they were free from any structural defect as alleged or at all and it is further denied

on behalf of the Defendant that he expressly warranted to the Plaintiff prior to the making of the said agreement that the said dwelling house was in a good and habitable state of repair, free from any structural defect or free from liability to regular flooding.

It is also denied that the house suffered from dry rot or wet rot or that there was any structural weakening of the said premises or that any such defects were or ought to have been apparent to the Defendant his servants or agents.

He denies that he concealed any defects in the said premises and alleges that the Plaintiff entered the said sale only after the said premises were professionally examined on her behalf so as to ascertain if the said premises contained the defects complained of or any defects.

In addition the Defendant counter claims for an injunction and damages for intimidation, trespass and nuisance. The Plaintiff in this case is a widow who resided in Wiltshire,

England from 1962 to 1982. In 1982 she decided to buy a house and live in Ireland.

In the autumn of 1982 she visited Mr. Patrick Quirke, an auctioneer and valuer carrying on business in Clonmel in the County of Tipperary, who had acted as Auctioneer for her son, Peter, who lived in Ireland.

Mr. Quirke had a number of suitable properties on his books including Mall House, Cahir in the County of Tipperary owned by the Defendant herein.

Accompanied by the Plaintiff, he called to the Defendant's premises in Cahir, was informed that it was not convenient to see the house at that particular time and was requested to come back in about an hour.

In the intervening hour, he showed the Plaintiff the outside of another premises but she was not interested therein.

They returned to the Mall House and were shown through the house by the Defendant.

During the course of the inspection there was a general discussion between the Plaintiff and the Defendant with regard to the house generally with regard to the plaster work, with regard to the fact that the basement had been flooded on one occasion as a result of its proximity to the river, with regard to the work that had been carried out to the house generally by the Defendant and when the inspection had been completed they went to the little sitting room downstairs and the Plaintiff states that she said to the Defendant that:

"it is a very nice house - I'll have it surveyed"

and that he replied as follows:

"don't waste your money - there is nothing wrong with the house. Everything is in order".

And that she replied:-

"that is all I wanted to know".

She stated that she was satisfied to take his word.

There was then a discussion about price and Mr. Quirke left the room to discuss the matter with the Defendant and when he went back and informed the Plaintiff that the price was £60,000.

The Plaintiff then asked if she could come back on the following Sunday and this was agreed.

Accompanied by her daughter she returned on the following Sunday and was again allowed to inspect the house.

The Defendant stated in evidence that it was on this occasion that the question of a surveyor was raised by the Plaintiff and that she stated:

"I'd like to have the house surveyed"

and that he replied -

"Do you think it is necessary"

and then she stated:

"I'd prefer to"

He stated

"Won't it cost a lot of money"

and that the Plaintiff replied that -

"She knew somebody who would do it at the right price".

He denies that he told her not to waste her money, that there was nothing wrong with the house and that everything was in order.

There was no discussion about price on that occasion and on the following Thursday, the Plaintiff's son accompanied by Mr. Thomas Day, a Director of Lisneys came to inspect the premises.

The Defendant was expecting them, he let them in and allowed them examine the house.

Subsequently, Mr. Quirke was contacted and a price of £55,000 was agreed, £49,000 being in respect of the premises and the balance in respect of curtains and carpets.

The formal contract was signed on the 20th September 1982 and was signed by the Plaintiff's son on her behalf as she had returned to England.

The sale was completed in the ordinary way and at the beginning of November 1982 the Plaintiff entered into possession of the premises.

There is a dispute between the Plaintiff and the Defendant with regard to the condition of the wiring in the prairies, the Plaintiff was obliged to have the whole house re-wired and sought to make the Defendant liable for the costs thereof.

Early in 1983 she was visited by her daughter and her husband and as a result of such visit she had protim come and inspect the place.

Extensive evidence of the presence of both dry rot and wet rot was discovered and in the opinion of Mr. Edward Powell of John Leigh Wood Services Ltd. such dry rot and wet rot must have existed for a minimum of three years before he saw it in 1983 and could possibly have been there for six or seven years.

It is quite clear from this evidence that if the Plaintiff is entitled to succeed in this action, she is entitled to substantial damages.

It is settled law that the vendor of a house gives no implied warranty as to its condition. A purchaser can make any examination he likes either by himself or by somebody better qualified so to do.

He can take it or leave it but if he takes it he takes it as he finds it. Unless there are warranties given or representations made, the purchaser must look out for himself and the principle of caveat emptor applies.

Consequently, in order to succeed in this action, the Plaintiff must establish as a matter of probability that the Defendant warranted or represented to her that there was nothing wrong with the house, that everything was in order, that it would be a waste of money on

her part to engage the services of a surveyor, that she did not engage the services of a surveyor because of such warranty or representation and that she relied on such warranty or representation.

There is a direct conflict of evidence between the Plaintiff and the Defendant both with regard to the nature of the conversation which took place between them after she suggested that she would engage the services of a surveyor and the occasion when the alleged conversation occurred.

The Plaintiff's evidence with regard to the nature of the conversation and the occasion upon which it occurred, namely on her first visit to the premises, is supported by the evidence of her son, Peter, who was with her on this occasion and not on the occasion of her second visit, when she was accompanied by her daughter.

The Defendant is quite definite that the suggestion about having the house surveyed was made by the Plaintiff on the occasion of her second visit to the premises.

I consider this issue to be of real importance because it affects the credibility of the witnesses.

Having carefully considered all the evidence with regard to this, I am satisfied as a matter of probability that the discussion in issue took place on the occasion of the second visit.

I have come to this conclusion after giving the matter careful consideration because I have very considerable sympathy for the Plaintiff.

I am, however, fortified in this conclusion by the fact that when the Defendant's solicitor by letter dated the 30th day of January 1985 asked the Plaintiff to "specify the express warranty claimed to have been given by the Defendant to the Plaintiff prior to the making of the agreement that the dwelling house was in good and habitable repair and free from any structural defect and also free from liability to regular flooding as claimed in Paragraph 5 on the said Statement of Claim."

He went on to say that:

"If it is claimed that the same was in writing furnish copy thereof and if it is claimed that same is oral specify the words alleged to have been used in giving the said warranty; in either case, please specify the date and if the alleged

warranty was oral, the place where the alleged words were spoken.”

By letter dated the 4th day of April, 1985, the Plaintiff's solicitors stated that:-

"On the Plaintiff's second meeting with the Defendant, the Plaintiff said that she would have the premises surveyed. The Defendant said with great emphasis "Don't waste your money, Mrs. Curling. There is nothing wrong with the house. Everything in the house is in order".

This was a specific reply to a specific question and I must presume that the said reply was given on the instructions of the Plaintiff.

That being so, I must reject the evidence of Mr. Peter Curling with regard to the nature of the discussion that his mother was alleged to have had with the Defendant on the occasion of the first visit at which he was present.

I am also satisfied as a matter of probability that the Defendant's recollection of the conversation that he had with Mrs. Curling after she suggested that she would have the house surveyed is more reliable and is probably true.

The statement made by him did not, in my opinion, amount to either a warranty or a representation of any kind and consequently the ordinary principle of caveat emptor must apply and the Plaintiff's action fails.

With regard to the counterclaim, I am not satisfied that the evidence with regard to the incidents therein referred to justify me in making any order thereon.