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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Cantwell v. Newlyn Developments Ltd. [2002] IEHC 138 (30 July 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/138.html Cite as: [2002] IEHC 138 |
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THE HIGH COURT
1999 No 11772p
BETWEEN
SHANE CANTWELL
Plaintiff
And
NEWLYN DEVELOPMENTS LIMITED
Defendant
JUDGMENT of Mr Justice Kelly delivered the 30th day of July, 2002
Introduction
On paper these proceedings seek specific performance of a contract for the sale of an estate house indicated as site 27 St. Mochta's Avenue, Coolmine, Blanchardstown, Dublin 15. In reality the plaintiff is not interested in obtaining a decree for specific performance but claims damages in lieu thereof.
As the case developed it threw up a number of curious, and indeed mysterious side issues. Amongst them was the question of how the plaintiffs solicitor was so mistaken in the attendances which he made concerning the plaintiffs supposed involvement in the purchase of a house, on the same estate, by his friend Mr David Hayes. Equally curious was the nonchalant, almost disinterested way in which Mr Hayes went about the purchase of his house. On the defendant's side the inclusion of the wrong map with the contract for the purchase of the house in suit, the discovery of that fact as of about the 16th August, 1999 but with no steps being taken to rectify it until correspondence was received from the plaintiffs solicitor well over a month later, was also puzzling.
Curious as these side issues may be, none of them are determinative of what is in dispute here.
To a great extent the determination of this case depends on my resolving a stark conflict of testimony between the plaintiff and a friend of his father's, Mr Noel Hogan.
The Plaintiffs Evidence
The plaintiff is a property manager for a motor car company. In 1998 he had returned from living in the United States of America. His parents suggested that it would be prudent to purchase a house. His father had an acquaintance with a Mr Noel Hogan. He knew Mr Hogan to be involved in the development of a site at Clonsilla and so made contact with him. So also did the plaintiff.
He met Mr Hogan on site. Having explained who he was Mr Hogan took him into the showhouse and took out a map. The plaintiff says that Mr Hogan would have known the best type of house and appropriate orientation as he was experienced in the house building business. The plaintiff was not. He alleges that Mr Hogan explained to him the desirability of an end house because of its privacy and the benefits of a south facing orientation. Mr Hogan pointed to just such a house on the map, assured him that he would look after it and would contact him in due course. The house was semi-detached. At this stage the house in question had not been built nor was it scheduled to be built. for some considerable time thereafter. The price for the house was, says the plaintiff, £119,950. All of this occurred in September/October, 1998.
He heard no more from Mr Hogan. Subsequently, the plaintiffs friend David Hayes expressed interest in buying a house. The plaintiff advised him to go and look at the estate in Clonsilla. Mr Hayes told him thereafter that the price for the houses had gone up. So the plaintiff rang; Mr Hogan. He asked about the increase but Mr Hogan said he knew nothing of it. He did however, assure him that he had booked the house for him. Again, Mr Hogan indicated that he would contact the plaintiff at the appropriate time, but did not do so.
Mr Hayes decided to purchase his house but was able to tell the plaintiff that another increase had now been effected and the price was £130,950. This caused the plaintiff to telephone Mr Hogan and meet him again on the site. He explained that he could not afford this increase and expressed dissatisfaction that Mr Hogan had not contacted him. At that Mr Hogan gave him the; telephone number- of Mr Ken Malone a director of the defendant company. Mr Hogan told him that he had had a similar experience himself.
The plaintiff rang Mr Malone. He says that Mr Malone explained that he had no obligation to do anything for him and the price was £130,950. The plaintiff thought that was very unfair and after some discussion a reduction of £3,000 was given to him. He indicated that he was still riot in a position to afford the house at that price and a further adjustment was made, namely the booking deposit was fixed at £2,000 and the actual deposit at £3,000. He says that Mr Malone put that proposition to him on a take it or leave it basis.
He then went and discussed the matter with his parents and his girlfriend and they advised him to go ahead. He paid a booking deposit on the 8th June, 1999. He did so in the presence of Mr Hayes who was buying his house and was also due to pay a booking deposit. They both went to the estate agent's office in Leixlip together. Mr Hayes simply picked a house, number 17, because it coincided with his birthday. He was unable to pay the deposit at that time and the plaintiff did so.
In September, 1999 the plaintiff says that he went to see the house with his girlfriend. They did so on a Sunday when nobody was about. When he got to the site which he believed he was purchasing he noticed that the foundations had been dug for a detached home and he was confused by that. At all times he believed himself to be purchasing a semi-detached house.
They then tried counting the houses on the road but the numbers did not add up. He believed that he was purchasing a semi-detached house, number 27 St Mochta's Avenue which was an end of road south facing edifice. What he witnessed on site did not tally with this. He telephoned his solicitor after this visit and obtained a map which accompanied the contract and it was in accord with :his understanding. At this time of course, he had paid the full deposit on the premises.
Thereafter he went out onto the site. He met Mr Hogan again. He asked him to show him his house. Mr Hogan walked him round to the corner to what was now number 27 and was a semi-detached house with an east-west orientation and was not an end of road one. He indicated that this was not the house that he believed he was getting. Mr Hogan said it was. He says he was Flabbergasted and did not know what to say. Thereafter he contacted his solicitor and explained the position to him and correspondence ensued.
In cross-examination the plaintiff agreed that all of the discussions which he had on his first encounter with Mr Hogan were by reference to a map. Mr Hogan pointed to the house which he suggested on the map. There were stickers on the map. He says that the house he wanted was number 27 which as shown on the map was a semi-detached house with a south facing back garden. He never wanted the one which ultimately was proferred to him. Furthermore, in cross-examination the plaintiff said that when he went to the estate agent's office in Leixlip in June, 1999 to pay the deposit the location of his house never arose. Mr Hayes picked his own house but the plaintiff did not tell him where his was. He says he did not examine the map in detail at that time.
He furthermore accepted that at the time when he had the meeting with Mr Hogan subsequent to his discovery on the Sunday afternoon visit on site with his girlfriend they could have been accompanied by a Mr Mick Roberts who was a foreman on the site. It was put to him that both Messrs Hogan and Roberts would say that they walked around what is now number 27
i.e. the east-west oriented house and that there was a discussion about a foundation for a garage being put in or of a patio but not of any mistake concerning the house, its location or orientation. He said that he did not wish to have a row on the site. He had arranged to meet Mr Hogan to find out what was going on and walked around the corner with him.
Finally, he said that when he was paying the booking deposit along with Mr Hayes he looked at number 17 on the plan but he did not notice that the corner house at that stage was number 25 and detached.
Mr David Hayes who paid the booking deposit on number 17 via the plaintiff said that the plaintiff s home was not identified when he was looking at the map on that day. There could have been a joke about them being neighbours but that was it. So, in summary, the plaintiff says that the house which Mr Hogan recommended was number 27 St Mochta's Avenue, a semi-detached, end of road, south facing back house. Indeed that was what was represented on the map which accompanied the contracts sent by the defendant's solicitors.
Mr Noel Hogan
Mr Hogan is a director of a management company and supervised all the work on the building site in question. His function was to attend to the organisation of the site and supervise the work from start to finish. Ile never had anything to do with sales or pricing of houses and is not an employee of the defendant company.
He recalled receiving a telephone call from the plaintiff s father who was the manager at his local bank branch. He asked him to help his son in selecting a house on the site. The father indicated to him that the plaintiff might live in it or he might let it. He did not want a house at an early stage in the development and so the selected house was to be in phase 2 of the development.
He remembers meeting the plaintiff in autumn 1998. The showhouses had opened in September of that year. He brought the plaintiff to the sales office. They chatted. He selected the house for the plaintiff. He remembers having a conversation and giving his reasons for choosing the house which he did. Insofar as the aspect of the house was concerned he explained that a lot of people felt that a south facing aspect was desirable but he preferred an east west orientation because he considered it to be better. The reason for that is that the north side of a south facing house never gets the sun. He therefore selected an east west orientation house and he selected an end of line house. He had a map and he placed his initial on the house in question. The house is the one which is now proferred by the defendants but not the one which the plaintiff says Mr Hogan chose for him.
Mr Hogan said that the plaintiff did not say what he wanted the house for. However, he knew from the conversation that he had had with the plaintiffs father that is was probably for letting purposes. He indicated that the plaintiff was depending on him to pick the house and he did so.
The houses were being built in stages and the house which he chose was in phase 2. He initialled the chosen house on the site plan and made contact with a sales lady called Martina. She is Martina Dillon and gave evidence in this case. He acknowledged that at the end of the meeting he told the plaintiff to let the matter lie and that there was no problem because he would ring the sales people. He also told him that when money was needed he would be told.
Mr Hogan was not involved in any other sales on the site. The next contact which he had with the plaintiff was when Mr Malone contacted him with a view to obtaining the deposit for the house. He contacted the plaintiff and the plaintiff asked if he would help him in relation to the price. He told him that he would not be able to make any adjustment to the price but he might be able to do bits and pieces about the house. The booking deposit was paid on the 8th June, 1999. The next time that he had contact with the plaintiff was when the plaintiff telephoned him and thanked him for all that he had done. He told him that Mr Malone had treated him fairly and he remembers that this occurred in the summer of 1999.
Subsequently, he was contacted by the plaintiff who asked him to point out the house that had been chosen. The plaintiff was insistent that he should do it. On foot of this request he had his second meeting with the plaintiff on site. They met in the site office. They were accompanied by Mr Roberts and the three walked down to the house which he had previously selected. There was no indication whatsoever of a problem on the part of the plaintiff. They got to the site and chatted on the road. He went into the house with the plaintiff. The plaintiff asked him if he could do anything by way of extras in the house. He pointed out that there was not a lot to be done because the house had everything. He did say however, that perhaps a patio and an additional damp proof course might be a possibility. There was no space for a garage. This was the house chosen by Mr Hogan and now offered to the plaintiff.
He remembers that on the first visit when picking the house he mentioned the location of the railway station and he picked a house which was as close to the station as one could get and thought this would be good for letting purposes. At that stage of course there were no houses to be seen because the second phase had not been commenced.
He says that at no stage during the second meeting on site was there any suggestion made by the plaintiff that the house they were looking at was the incorrect one. No query was raised. They went to the office after the meeting and shook hands.
Subsequent to this visit he got a call from Mr Malone to say there had been a mix-up concerning the lease map and he asked him to give the plaintiff a ring. He did so. The plaintiff s response was to say that it was not a simple as that and that he had been messed up. Mr Hogan said he had not messed him up and was disappointed in his attitude.
In cross-examination he said the plaintiff had no input into the selection of the house. The sales map was on a board. He showed him the map with red dots on it. Nothing was agreed apart from the location and the cost of a house did not involve him. He discussed the most suitable house with the plaintiff and the plaintiff accepted what he said. He held the house for the plaintiff and it was never at any stage the corner house with south facing orientation which is now suggested. The plaintiff never complained to him in respect of the matter.
The Planning History
There is no doubt but that at the time that the plaintiff visited Mr Hogan on the first occasion the. layout of the houses was as shown on the map which ultimately accompanied the contract sent to the plaintiff and dated the 2nd July, 1999. However, on the 22nd December, 1998 an application for permission for a revised layout was made to the planning authority. Approval for this was granted by the planning authority on the 30th March, 1999. The effect of this was that the final house with the south facing aspect on that part of St Mochta's Avenue which the plaintiff says was chosen by Mr Hogan was no longer to be a semi-detached but rather a detached house. From that time on that was the position which obtained on that site. Unfortunately, when the contract map was sent out it was the map of the pre-30th March, 1999 configuration. Mr Lewis of the firm of BCM Hanby Wallace says that this was an error.
The Resolution of the Dispute
The onus is on the plaintiff to demonstrate as a matter of probability that the house which he contracted to purchase was the southern facing one at the end of the terrace which was the number 27 St Mochta's Avenue. If he demonstrates this to be so then what he is now being offered is not that house but rather one with an east west orientation situate at right angles to the original albeit that the dimensions of the house are exactly the same. He says that by way of damages he is entitled to the difference in value between these houses. His valuer says that the difference in value is of the order of E35,000.
There is a total conflict of evidence between the plaintiff and Mr Hogan on the topic. There are a number of pointers which I find of assistance in attempting to resolve this conflict. First, Mr Hogan was quite specific in his recollection that not merely did he not but he would not have chosen a southern facing house for reasons which he explained. He knew that his views were probably not shared in general in that regard but pointed out that his own house had an east west orientation. Secondly, when the plaintiff met him for the second time on the site and was brought to the present number 27 Mr Hogan says that no complaint was made in this regard. They met, had a discussion and parted on good terms. Whilst it is correct to say that Mr Roberts did not go into the house that was being built at that stage, he did stand outside. He did not witness any apparent tension between the plaintiff and Mr Hogan and both men appeared to be friendly when they came out of the house. I think such friendliness is inconsistent with the position which the plaintiff said obtained. Whilst I can well understand why he would not want to have a blazing row with a friend of his father's on this matter, I do not think that matters would have been dealt with in as low a key as they appear to have been on the plaintiff s version of things. On Mr Hayes version no complaintat all was made. On the plaintiffs version the issue was raised but in a way which I find rather unconvincing.
Thirdly, Mr Hogan put his initials on the plans and says he marked the house which is the present number 27. I had important evidence from Martina Dillon the sales lady employed by the estate agents. She struck me as a careful and efficient person. She gave evidence of Mr Hogan contacting her concerning the house which he wanted to hold on behalf of the plaintiff. He had marked the house in question on the board at the site office. She marked her board in her office accordingly. There were two boards, one on the site and one in the office. She marked her board with Mr Hogan's initials and she subsequently checked it against the board on the site. It was consistent with the present number 27. When she updated this board she continued to mark that particular site and it was the only one which she was holding on the estate. The house which was marked for the plaintiff was at all times the east west orientation one which is the present number 27.
She described what took place on the 8th June, 1999 when the plaintiff and Mr Hayes came to her office. On that occasion both the plaintiff and his friend Mr Hayes, attended. The plaintiff identified himself and she knew immediately who he was and indicated that she had been holding; the house in question for months. She sat at the desk and showed the map to both the plaintiff and Mr Hayes. The plaintiff was doing the talking concerning both houses. She pointed out to him the house which was his. She said "that's yours, I've been holding it for months. " Whilst Mr Hayes was very quiet both of them were looking at the map.
Her evidence seems to me to be important for two reasons. First, it demonstrates a continuous consistent chain in the location marked on the maps from the time of the first visit right up to the payment of the deposit. The original site map was copied onto her map and was updated. It was checked by her, marked by her and updated by her. At all times it demonstrated the site which had been chosen by Mr Hogan rather than one claimed by the plaintiff. Secondly, her version of what took place on the visit to the site office on the 8th June, 1999 when the deposits were paid appears to me to be much more likely than what was given in evidence by the plaintiff. I think it highly unlikely that the plaintiff did not tell Mr Hayes where he had picked his house and that the location of the plaintiffs house never arose. Neither do I think it likely that the map was not looked at in some detail. I think that Miss Dillon's version of events is much the more probable.
Overall I found Mr Hogan a more persuasive witness than the plaintiff. Likewise I found the defendant's witnesses as to fact more persuasive than the plaintiff and Mr Hayes. The furnishing of the wrong site map with the contract was I am satisfied a genuine error.
In these circumstances I am not satisfied that the plaintiff has discharged the burden which is placed upon him to prove his case as a matter of probability. It follows therefore that this action will be dismissed.
The deposit will be returned and the lis pendens vacated.