Courtney -v- McCarthy [2007] IESC 58 (04 December 2007)

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Cite as: [2008] 2 IR 376, [2007] IESC 58

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Judgment Title: Courtney -v- McCarthy

Neutral Citation: [2007] IESC 58

Supreme Court Record Number: 70/07

High Court Record Number: 2005 3000 P

Date of Delivery: 04 December 2007

Court: Supreme Court

Composition of Court: Geoghegan J., Kearns J., Finnegan J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Geoghegan J.	Appeal allowed - set aside High Court Order	Kearns J.
Finnegan J.

Outcome: Allow And Set Aside

THE SUPREME COURT

Record No. 70/07

Geoghegan J.
Kearns J.
Finnegan J.

BETWEEN/

ANNE B. COURTNEY

Plaintiff/Respondent

and

THERESE McCARTHY

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 4th day of December 2007

Although this litigation, on its face, relates simply to a contract for the sale of land, unusual issues of both fact and law arose. The plaintiff/respondent was the vendor and the defendant/appellant was the purchaser. For convenience I will refer to them as “the vendor” and “the purchaser” respectively. The vendor’s proceedings were with a view to establishing that she had lawfully rescinded the agreement. The appellant in her defence denied rescission and sought specific performance. In reality, however, the denial was artificial as undoubtedly the agreement had become rescinded at the suit of the vendor but the purchaser’s claim for specific performance was based on an alleged estoppel which allegedly arose from a set of circumstances which took place after the date of the purported rescission. The learned trial judge in the High Court granted the vendor her relief sought and dismissed the purchaser’s counterclaim. The purchaser has appealed that decision.

The sale related to lands with a development potential situate at Rocky Road and Ballybeg Road, Ennis in County Clare. The purchaser’s father owned adjacent property and was a developer of some substance. The sale had been a sale by public auction. The signed memorandum incorporated the then standard Law Society contract with some special conditions included in it. Some matters relating to planning and development and some matters relating to access which were partly covered by the special conditions were of considerable interest to the purchaser and although she signed the contract, as it stood, she attempted afterwards with the help of her solicitor to have certain aspects of these matters agreed. For reasons which I will explain, I do not find it necessary to give details. They are, at any rate, more fully dealt with in the judgment of Finnegan J.

The agreed closing date was the 8th April, 2005 and it is pleaded in the statement of claim that pursuant to general condition 40 of the contract by a notice dated the 22nd April, 2005 twenty eight days were given for completion and that period elapsed without the sale being closed. The statement of claim goes on to plead that the vendor thereupon forfeited the purchaser’s deposit on the 30th May, 2005 and effectively rescinded the agreement.

There were then further attempts made at the suit of the purchaser but partly also with the connivance of the vendor to revive the agreement on a without prejudice basis and with some side agreements about the matters of special concern to the purchaser.

It seems absolutely clear that the rescission by the vendor was lawful and it seems equally clear that until the events which I am about to describe and which form the factual background of these proceedings took place, all other attempts to revive the agreement on a without prejudice basis or otherwise had become redundant. I do not, therefore, find it necessary to elaborate further on them.

Events took a sudden turn however on the 4th July, 2005. On that date the auctioneer, Mr. Fitzpatrick, received a telephone call from the daughter of the vendor. The daughter is the same name as the mother i.e. Anne Courtney. It appears that the vendor is frail and elderly and everything to do with the sale was being managed on her behalf by her said daughter who in turn was married to her solicitor, Mr. Michael Hickey. Mr. Fitzpatrick in evidence gave an account of this call from contemporaneous notes which he took. According to the transcript, Mr. Fitzpatrick, referring to these notes, said the following:

“She prefaced it by saying that her mother was somewhat frustrated by the whole affair and the effect .. and was concerned about the effect it was having on her mother’s health. That was the general background. And she said in an effort to bring the matter to conclusion, she asked me to contact Therese McCarthy with a view to closing the sale on Monday 11th July. She specifically said to me she didn’t want to prejudice what was going on between the respective solicitors and she didn’t want any correspondence, she didn’t want me to enter into any correspondence in the matter.”

Mr. Fitzpatrick then confirmed that he was to contact the purchaser. His instructions from Ms. Courtney were to ask or to make arrangements to contact her solicitor so as to close the sale at 2.00 p.m. on Monday, 11th July at the office of John Shiel and Company. They were the solicitors for the vendor of which Mr. Michael Hickey was partner. Mr. Fitzpatrick succeeded in making contact virtually immediately with the vendor and he told her of the request and although she did not commit herself at that stage, Mr. Fitzpatrick was under the impression that she was happy to bring matters to a conclusion. The evidence of Mr. Fitzpatrick makes it clear also that the purchaser was made to understand that what was to be completed was the original contract unaltered but that any such revised arrangements were to be without prejudice to the previous rescission. Under cross-examination, Mr. Fitzpatrick further confirmed that while he did not foresee any practical difficulty in relation to the side matters originally concerning the purchaser, the business for the 11th July would be the completion of the one and only contract he knew about that is to say, the contract made at the auction. He was also questioned on the matter of interest. There is no doubt that on behalf of his client, the purchaser, her solicitor, Mr. Gavin of Galway did his best to negotiate his client’s way out of paying interest. One of the problems was that the bank loan for which she had sought sanction would not have covered a liability for interest which was in the event quite considerable having regard to the delay in closing. As far as Mr. Fitzpatrick was concerned he made it clear that there was no discussion on interest either way. There was a clause in the contract providing for interest and that was the end of the matter. In upholding the rescission and refusing specific performance, the learned High Court judge attached significance to the interest question. Having regard in particular to the evidence of Mr. Gavin to which I will be referring and at any rate having regard to a premature reneging on the promise, I am of opinion that she was not correct in so doing. It is clear beyond doubt, in my view, that even if there had been no “give” whatsoever on the part of the vendor in relation to interest, interest in accordance with the contract would in fact have been paid had the closing originally suggested for the 11th July taken place.

Interest was never a matter which concerned Mr. Fitzpatrick because of course it could only arise in the event of delay. The following dialogue, however, between Mr. Fitzpatrick and counsel for the purchaser took place towards the end of his cross-examination:

“Q. Was it your understanding that if this went ahead on the 11th, that was a matter to be dealt with by Mr. Fowler?

A. Yes, at closing, yes.

Q. With Mr. Fowler?

A. Yes. Sorry, I should say that when Anne Courtney rang me first on the 4th I was aware that she was on a family holiday in Kerry and that Michael Hickey was with her. I specifically asked who would deal with the closing .. (interjection).

Q. On the 11th?

A. In the office of John Shiel, yes I specifically … (interjection)

Q. Who was going to deal with her and you were told Mr. Fowler … (interjection)?

A. David Fowler, that’s according to my notes.

Q. Did you tell Ms. McCarthy that’s going to be dealt with by Mr. Fowler?

A. I did specifically … (interjection)

Q. You told her that?

A. Because I knew the first thing she would have to do would be get in touch with Colm Gavin’s office in Galway.

Q. Her own solicitor?

A. Yes.

Q. But mentioned it would be Mr. Fowler dealing with it?

A. Absolutely, I did.”

Those arrangements as described so clearly by Mr. Fitzpatrick correspond with the evidence of the purchaser and correspond with the evidence of Mr. Gavin as to his instructions. More importantly, it is entirely borne out by the evidence of Mr. Gavin as to his subsequent conversations with Mr. Fowler, a matter which I will be dealing with in some detail later on in this judgment.

Having regard to the comprehensive review of the evidence given by Finnegan J. in his judgment and for which I am grateful, I intend to confine myself to the aspects of that evidence which are most relevant to this appeal. I think it of some importance, however, to list the witnesses who did in fact give evidence if only for the purpose of highlighting a major omission. The witnesses were:
Mr. Michael Hickey, solicitor for the vendor.
Ms. Anne Courtney junior, daughter of the vendor.
Mr. Michael Fitzpatrick the auctioneer.
Ms. Therese McCarthy the purchaser.
Mrs. Anne Courtney the vendor.
Mr. Michael Earley the relevant bank manager.
Mr. Colm Gavin, solicitor for the purchaser.

When I describe what happened on the 11th July, 2005, it will emerge that Mr. David Fowler a partner of Mr. Hickey was a key figure. Yet, although it appears from the transcript that he was present in court, he was not called as a witness.

I turn now to the key evidence of Mr. Gavin. Mr. Gavin explained that he received the instructions from his client, the purchaser, relating to the offer conveyed to her by Mr. Fitzpatrick in early July, 2005. He had been out of the office until Thursday, 7th July and therefore received them on that date. Early the following morning he contacted the office of the vendor’s solicitors which was a Dublin firm. He was told that Mr. Hickey was on holidays and he then asked for Mr. Fowler but he was told that Mr. Fowler would not be there that day. He told the telephonist that he would ring back on the Monday but that the matter was extremely urgent. When asked what did he understand was going to happen on Monday, 11th July, he said that he understood that the sale was to be completed. These were the instructions given to him by the purchaser. He interpreted his instructions as meaning that the sale was to be completed in accordance with the terms of the original contract. That, of course, was a correct interpretation if Mr. Fitzpatrick’s evidence was to be accepted and there was no reason to dispute it. When asked about the side problems such as access on to the lands etc., he answered as follows:

“Well, my understanding with regard to it; the site seemed to be fraught with problems as far as I could see. The original contract was a little loose with regard to how the access and things were to be. But whatever I was being offered on the day, on Monday, I would have to accept. That was as far as I was .. and that is what I informed my client. Whatever we were getting we had to take, that was it.”

He confirmed that those were in fact his instructions. He was then asked about interest. Having explained what often happened as between solicitors in relation to interest and how interest was often wholly or partly waived, matters which I can safely skip over because Mr. Gavin fully accepted that the full contractual interest had to be paid if necessary and his evidence was that if his client on the day could not pay it he would have had no trouble in obtaining it from the Allied Irish Bank. He would have debited his own office account with the amount of the interest and would have paid it over to the vendor. His evidence was that he was absolutely satisfied that if it came to the worst he would be able to recover the interest from his client’s father, the developer, Mr. McCarthy. He added “I know them well enough, trust them enough for that.”

There appears never to have been any dispute as to how interest was to be calculated which might have been a different matter. The problem was a financial one and the purchaser was hoping to escape interest or at least escape part of it. But I think it is perfectly clear that she was well aware that under the contract, the liability to pay interest existed and she was equally well aware that what had to be performed was the contract as originally entered into.

As far as the side issues were concerned the evidence would seem to clearly establish that for the purpose of any closing that might occur on the 11th July they were not regarded as part of the contract except in so far as there were special conditions relating to them. Some of the obligations in the special conditions were, at any rate, post completion obligations.

The narrative as to what exactly happened as and from Monday, 11th July, 2005 is crucial to the outcome of the case. I will now explain it in detail.

I will do so primarily by reference to the evidence of Mr. Gavin and I will refer briefly to any relevant conflicting evidence from Mr. Hickey. First of all I should mention that there was evidence from Mr. Gavin that he sent a fax to the firm of John Shiel, solicitors, on Friday, 7th July very shortly after he had telephoned the office. It would, therefore, have been some time between 9.00 o’clock and 10.30 on the Friday morning. The fax read as follows:

“Dear Mr. Fowler,

I rang you on my return from a few days leave this morning but unfortunately you were not available. My client has instructed us that apparently this sale is now back on track and is to complete immediately. To this end, I have arranged with AIB to draw down the monies on Monday morning and it can be forwarded to you by draft of (sic) by electronic transfer.

You might ring me in order to bring this protracted matter to a conclusion.

Yours sincerely

Colm Gavin”

There was enclosed with a separate fax of the same date from Mr. Gavin some maps relating to the side issues. The hope was expressed that there would be agreement in relation to these matters but it was made clear that it would not hold up the closing of the sale. That fax was sent also directly to Mr. Fowler. Mr. Gavin then described what happened on the Monday morning i.e. Monday, 11th July. He rang the office of the solicitors for the vendor and asked for Mr. Hickey but he was told that Mr. Hickey was on holidays. He then asked for Mr. Fowler and he was told that Mr. Fowler was in court and would be there all day. Mr. Gavin then explained to the receptionist the urgency of the matter as he had been told that there was a 2.00 o’clock deadline and that he was arranging for monies to be put through to the account of the solicitors for the vendor and he asked the receptionist could she arrange that Mr. Fowler would telephone him. That phone call from Mr. Gavin was at approximately 9.00 o’clock in the morning. Mr. Gavin then went on to explain how he had arranged the monies with the bank and that it would be essential that they would be available by 2.00 o’clock. Mr. Gavin had already approved the draft deed at an earlier stage. All the usual documentation relating to Family Home Protection etc were in order. It had been stipulated to the purchaser that the sale was to be completed in Dublin in the offices of John Shiel. It is not entirely clear from the evidence whether if everything had moved smoothly, Mr. Gavin would personally have attended in Dublin at the firm of John Shiel though the more probable inference is that he would have done so. At any rate he explained that any problem about that could be got over in one of two ways. Either he could have been at the other end of a telephone line which is very common nowadays or his sister who is a Dublin solicitor could have attended on his behalf, something she had done on behalf of his firm before.

At about 11.30 on the morning of the 11th July, Mr. Gavin received a telephone call from Mr. Fowler. He explained to Mr. Fowler the urgency of the matter that he was putting the monies through anyway but Mr. Fowler told him that he was “caught in court” and that he could not deal with the matter at that time but that he could complete it the following day. Mr. Gavin agreed to this suggestion as he had no problem with it. As far as Mr. Gavin was concerned there was simply an extension and nothing more until the following day. He so informed his client. He did not then travel to Dublin. Despite the postponement, Mr. Gavin made it clear that he was still “putting the money through”. At that stage as far as Mr. Gavin was concerned and indeed as far as his client was concerned everything was on course for a closing of the sale in accordance with the contract on the following day, Tuesday, 12th July, 2005 until Mr. Gavin received a telephone call from Mr. Hickey at about 12.30 in the morning of the 11th. Mr. Hickey immediately said to him over the telephone “Why aren’t you here in my office to complete this transaction”? According to Mr. Gavin’s evidence, Mr. Hickey told him that he, his wife and his mother-in-law, that is to say, the vendor had travelled up from Kerry to complete the transaction on that day. Mr. Gavin then apologised but explained the position as he saw it but he was told by Mr. Hickey “it is too late now”. According to Mr. Gavin (though this was denied by Mr. Hickey) Mr. Hickey said that he wanted the money to go back with his mother-in-law to Kerry and indeed that that was the exact words he used. It emerged in the evidence that the vendor was not in Dublin at all. Mr. Gavin told Mr. Hickey that he was quite happy to release the money because he knew the documents he was going to receive. However, Mr. Hickey told him “It is too late, the sale is off”. That was the end of the conversation. On the same day, Mr. Gavin wrote the following to Mr. Hickey:

“Dear Mr. Hickey

Our telephone conversation refers. It is in order to release monies today, you may send on the documents to me. With regard to the right of way, the map has to be agreed between the parties. When same has been agreed, I should be grateful if you would have the grant of right of way executed.

Yours sincerely

Colm Gavin”

That elicited a reply from John Shiel, solicitors in the following terms:

“Dear Sirs

We refer to the above mentioned matter and your facsimiles of the 8th July and 11th July.

As previously advised the contract for sale was rescinded and the contract deposit forfeited. Accordingly, this matter is at an end.

Any monies forwarded to us will be immediately returned to you.

Yours faithfully

John Shiel, solicitors”

There was some subsequent correspondence which I do not find it necessary to set out.

I wish to refer briefly now to the evidence of Mr. Hickey. In relation to the actual issues which are relevant to this case none of Mr. Hickey’s evidence is material except in so far as it relates to what was to happen on the 11th July, 2005. The arrangements for that date, of course, were made between Mr. Fitzpatrick and the purchaser. It is clear beyond doubt from the evidence of those two witnesses that what was contemplated was a closing of the sale on the 11th July. Mr. Hickey, on the other hand, in his evidence seemed to suggest that all that was intended to be involved was some kind of round table meeting to see whether there was any basis on which a sale could go through notwithstanding the rescission. In giving this evidence, Mr. Hickey was either mistaken or disingenuous. Mr. Hickey was in Kerry on his holidays at the time that the arrangements were made. Mr. Hickey explained that the 11th July had been chosen because he would have been coming up to Dublin on that date with a child who had an appointment in Crumlin hospital. That would have been in the morning and, therefore, any matters relating to the sale would have had to be dealt with in the afternoon. It appears from Mr. Hickey’s evidence that after Mr. Gavin had had the conversation with Mr. Fowler on the 11th July, Mr. Fowler telephoned Mr. Hickey. Mr. Hickey then contacted Mr. Gavin on his mobile and on essential matters his evidence is not significantly different from that of Mr. Gavin. Despite the arrangements already made according to Mr. Gavin with Mr. Fowler whereby a closing would take place on the 12th July, as far as Mr. Hickey was concerned there was to be no closing and his client was standing by the rescission. Curiously enough this volte-face seemed to be largely based on Mr. Gavin not being in Dublin in circumstances where Mr. Hickey alleged that the so called meeting at 2.00 p.m. was to be held in Dublin. The telephone conversation took place, according to the evidence of Mr. Hickey which was not disputed by Mr. Gavin, about 12.30 or 12.45. It is clear that Mr. Hickey in no uncertain terms informed Mr. Gavin that any question of reviving the sale was off. Quite apart from the evidence of Mr. Gavin that, if necessary, the full interest would have been paid on closing, the issue of interest never really arose because it could not have come into play until the intended closing. Significantly, although Mr. Hickey both in direct examination and cross-examination was trying to suggest that all that was arranged for the 11th July was a mere meeting, he nevertheless was not able to give an accurate account of what Mr. Fowler actually told him following Mr. Fowler’s conversation with Mr. Gavin on the 11th. When it was put to him that Mr. Fowler must have told him he had had a conversation with Mr. Gavin concerning a proposed closing for the 11th he said “I don’t know whether he said it was to do with the proposed closing or anything”. Furthermore, Mr. Hickey admitted that Mr. Fowler in that conversation did say to him that he had told Mr. Gavin he was going to be in court all day and could not deal with the matter on the 11th. The obvious point was then put to Mr. Hickey in cross-examination as to how he could expect Mr. Gavin to be in Dublin on the 11th in these circumstances. Having regard in particular to the inconsistencies and hesitations in Mr. Hickey’s evidence the only credible account of what transpired in the discussion on the 11th July between Mr. Gavin and Mr. Fowler is that of Mr. Gavin. At any rate, Mr. Hickey’s evidence in this respect would be mere hearsay and significantly, as I have already mentioned, Mr. Fowler despite being in court was not called as a witness.

I have carefully considered the views of the learned trial judge but I cannot agree that the evidence is open to any conclusion other than that on the 11th July, 2005 as extended to the 12th July, 2005 the purchaser was ready and willing to close the sale in the manner and at the time stipulated. There is no doubt that the purchaser was hoping to escape interest but there is nothing in the evidence to suggest that if the vendor insisted on full interest, the purchaser would not have gone ahead with the purchase, indeed quite the contrary. The evidence also clearly establishes that the purchaser understood that it was the original contract as drawn up which had to be performed and that she was willing to do so notwithstanding some loose ends in relation to the side issues.

There remains, however, the important question of law, is the court entitled to grant an order for specific performance based on estoppel notwithstanding that the contract had been rescinded? The following clearly emerges from the evidence.

1. There was a promise that the sale would be closed on Monday, 11th July if the completion was done strictly in accordance with the original contract entered into at the auction.

2. The arrangements for the 11th July were by agreement postponed to Tuesday, 12th July.

3. On the 11th July and after that agreed postponement the promise was unequivocally reneged upon by Mr. Hickey on behalf of the vendor and thereafter the vendor insisted on the original rescission.

I should have mentioned of course that these new arrangements for the 11th July subsequently postponed to the 12th July were all without prejudice to that rescission in the event of the sale not being in fact closed by default of the purchaser.

It is I think common case that the purchaser, if entitled to specific performance at all, can only be entitled to it by virtue of an estoppel arising from the promise made by the vendor and communicated by Mr. Fitzpatrick as slightly modified in terms of date by Mr. Fowler of the solicitors for the vendor with some consequent detriment. Was there such an estoppel? I am quite satisfied that there was. There appears to have been a great deal of argument and submission in the High Court to the effect that counsel for the purchaser had not made it clear whether at the end of the day he was relying on an alleged estoppel by representation or an alleged promissory or equitable estoppel. Even if there was some validity in that criticism it seems to me that it is irrelevant. The two forms of estoppel can frequently overlap, that is to say the common law estoppel by representation on the one hand and an equitable estoppel arising out of a promise on the other. It is clear from some of the modern English case law presented to the court and which I accept, that estoppel by representation need not necessarily be confined to a representation that a particular fact is true. It can be, what has been described as an estoppel by convention, that is to say, the parties agree between themselves artificially to act as though a particular fact was true. Put simply in this case there was a clear promise by the vendor to permit completion of the original contract but without prejudice to the original rescission if the purchaser defaulted. If the purchaser could demonstrate that she suffered detriment as a consequence she could in equity bind the vendor to that promise. The transfer of the monies and consequent liability for interest to the bank constituted such detriment. However, the other form of estoppel to which I referred would also have been operative in this case and would have had the same effect. That can be expressed as being an agreed understanding that provided the closing took place in accordance with the conditions as stipulated as to date and time, the contract would be taken as being alive and not rescinded. I do not think it matters which of these routes one follows. The trial judge herself at one point during the hearing suggested that the true nature of the representation which might give rise to the estoppel could be regarded as being that the agreement would be treated as not rescinded.

A major argument on behalf of the vendor which featured particularly in the High Court was based on the old adage that estoppel was a shield and not a sword. Again, some of the modern English case law placed before this court convincingly demonstrates that while there may be a technical truth in that adage it is largely irrelevant as far as having any operative effect. It certainly does not mean any longer, if it ever did mean it, that estoppel can only be a matter of defence and can never ground a cause of action. Estoppel is regularly raised as a matter of reply to a defence. Thus, in the example of this particular case, in so far as the vendor purports to set up the rescission as a defence to the counterclaim for specific performance, the reply to that defence on the part of the purchaser is that, in all the circumstances, the vendor is estopped or precluded from asserting the rescission. For all practical purposes, therefore, the counterclaim is grounded on estoppel.

In expressing what I believe to be the relevant law of estoppel for the purposes of this case, I am placing considerable reliance on the judgment of Robert Goff J. in the English High Court in the case of Amalgamated Property Company v. Texas Bank [1982] Q.B. 84 and the judgments in the Court of Appeal in the same case with particular reference to the judgment of Brandon LJ. He explained what was meant by the expression “estoppel by convention”. The case related to a bank guarantee given by a company the validity of which was being disputed by the liquidator of that company. A question arose as to whether even if the guarantee was not valid an estoppel had arisen by virtue of the conduct of the company which precluded denial of the guarantee. Brandon L.J. though forming the view that the guarantee was in fact effective went on to consider the estoppel question in the event that he was wrong. Two main arguments against the existence of the estoppel had been put forward in the High Court and the Court of Appeal. The first was that since the bank held its mistaken belief as a result of its own error alone and that the company had at most innocently acquiesced in that belief which it also held, there was no representation which could found an estoppel. The second argument was that the bank was seeking to use the estoppel not as a shield but as a sword and that that was not permitted by the law of estoppel. Brandon L.J. rejected both arguments. He expressed the view that the particular estoppel relied on was of the kind described in Spencer Bower and Turner, Estoppel by Representation, 3rd ed. (1977) at pp. 157-160 as “estoppel by convention”. He cited the relevant passage of that work as follows:

“This kind of estoppel is founded not on a representation of fact made by a representor and believed by a representee, but on an agreed statement of facts the truth of which has been assumed, by the convention of the parties, as the basis of a transaction into which they are about to enter. When the parties have acted in their transaction upon the agreed assumption that a given state of facts has to be accepted between them as true, then as regards that transaction each will be estopped as against the other from questioning the truth of the statement of facts so assumed.”

In this particular case, both parties knew that the contract was lawfully rescinded and both parties accepted that that was to remain the position subject only to the proviso that both would act on the artificial assumption that the contract was still alive and enforceable if the sale was completed on a particular date and time.

Brandon L.J. then dealt with the second argument which, as I have already pointed out, was an argument which featured heavily in this case and particularly in the High Court. Mr. Barron, counsel for the plaintiff, argued strongly that estoppel here was being used as a sword and not a shield. But this is what Brandon L.J. had to say in relation to this alleged principle at p. 131 of the report:

“In my view much of the language used in connection with these concepts is no more than a matter of semantics. Let me consider the present case, suppose that the bank had brought an action against the plaintiffs before they went into liquidation to recover monies owed by A.N.P.P. to Portsoken. In the statement of claim in such an action, the bank would have pleaded the contract of loan incorporating the guarantee, and averred that, on the true construction of the guarantee, the plaintiffs were bound to discharge the debt owed by A.N.P.P. to Portsoken. By their defence the plaintiffs would have pleaded that, on the true construction of the guarantee, the plaintiffs were only bound to discharge debts owed by A.N.P.P. to the bank, and not debts owed by A.N.P.P. to Portsoken. Then in their reply the bank would have pleaded that by reason of an estoppel arising from the matters discussed above, the plaintiffs were precluded from questioning the interpretation of the guarantee which both parties had, for the purpose of the transaction between them, assumed to be true.

In this way the bank, while still in form using the estoppel as a shield, would in substance be founding a cause of action on it. This illustrates what I would regard as the true proposition of law, that, while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel succeed on a cause of action without being able to rely on that estoppel, he would necessarily have failed. That, in my view, is, in substance, the situation of the bank in the present case.”

As I have illustrated earlier in this judgment that is exactly the position which pertains in this case.

The judgment of Robert Goff J. and the judgments of the other two members of the Court of Appeal, Lord Denning and Eveleigh L.J. were in similar vein and I do not find it necessary to expand further.

There is no difference between Irish and English law on estoppel. There is, of course, Irish case law on the subject but I think that the principles enunciated in that English case of Amalgamated Property Company v. Texas Bank which is included in the book of authorities put before this court are particularly relevant to the circumstances of this case.

In short, I am satisfied that the vendor was bound by the promise made to permit the sale to be closed in accordance with the original contract on the 11th July and equally bound by the agreed extension of time to the 12th July. This obligation does not arise on foot of a new contract but rather on the principle of estoppel which can be applied to the facts of this case in different ways but in my view, the simplest approach is to hold that the vendor was precluded from asserting the rescission as against the purchaser if the purchaser was ready and willing to perform the original contract on the date agreed. That promise was reneged upon in advance of the agreed closing time. Having regard to the detriment suffered by the purchaser to which I have referred the vendor is estopped from raising the rescission by way of defence to the counterclaim for specific performance. I would, therefore, allow the appeal and would dismiss the vendor’s action. I would grant the relief sought by way of specific performance in the purchaser’s counterclaim. The unfortunate problems which arose in connection with the completion of this sale were contributed to by negligent behaviour on the part of the purchaser and indeed at one point a certain element of male fides in that there was more or less an admission that an assertion on behalf of the purchaser that a particular clause in the contract was void was made purely as a tactic. Again, put simply there was fault on both sides. I would, therefore, disallow any claim for either interest or damages by either of the parties against the other in respect of the period commencing on the 12th July, 2005 and terminating on whatever reasonable date may now be fixed for completion pursuant to the specific performance
order. The purchaser, of course, must pay full contractual interest payable on the contract up to the 11th July 2005 inclusive.

Judgment of Mr Justice Finnegan delivered on the 4th day of December 2007

The Facts

Anne B. Courtney the plaintiff/respondent (hereinafter the “vendor”) is the registered owner of the lands comprised in Folio 11394F in the Register of Freeholders, Co. Clare. She offered part of the lands containing 6.6 acres for sale by public auction on the 4th March 2005 and the defendant/appellant (hereinafter called “the purchaser”) was the successful bidder and signed a contract in respect of the same. The matter did not proceed smoothly due to default on the part of the purchaser. There was delay in paying the deposit. In correspondence the purchaser sought to vary the conditions of the contract and she was in delay throughout. On the 22nd April 2005 a completion notice in accordance with condition 40 of the general conditions of sale was served and interest was claimed in accordance with condition 25 of the general conditions of sale. The notice to complete expired on the 20th May 2005 and after such expiry without prejudice to the notice to complete the vendor indicated a willingness to complete. However the sale did not complete and by letter dated 30th May 2005 the vendor’s solicitors informed the purchaser’s solicitors that the plaintiff was rescinding the contract, that the deposit was forfeited and that the lands would be re-sold. On this appeal it is accepted by the purchaser that the contract had been rescinded and the deposit forfeited.
By letter dated the 2nd June 2005 the vendor’s solicitors wrote to the purchaser’s solicitors as follows:
“Strictly without prejudice to our letter of the 30th May 2005 and the notices therein, we would advise that our client is prepared to complete with your client strictly subject to the following:-
1. Completion must take place on or before Friday next 3rd June 2005.
2. Interest will be payable in accordance with the contract for sale.
3. The open space area may be revised as per the map as furnished by John Neilan and Associates under cover of the 6th May 2005 which was previously agreed by our client. Your client’s architect will now have to mark up this map as our client had agreed previously to have her architect mark up the map only to be told that your clients had changed their minds as to the revision of the map.
4. The contract for sale provides for the access to Ballybeg Road being granted when required and our client is prepared to grant same now provided that this does not hold up completion. Please furnish draft grant of right of way together with copy map showing the route for same for approval. We would point out that the very reason that the contract for sale provided that this right of way would be granted in due course if required, is that the local authority are likely to specify the route of such access roadway and where it comes out unto Ballybeg Road. We are pointing this out to you and would suggest that you advise your client accordingly.
5. No wayleave will be considered to Jack McCarthy’s land until completion has taken place. We have indicated on a number of occasions that our client is agreeable to consider same subject to sight of the proposed route of same, however, same does not form part of the contract for sale and will be considered once completion has taken place. In this regard, we have asked on a number of occasions for a map showing the route of same, but have received nothing. This can be looked into further post-completion.
6. Your client’s arrangements with Jack McCarthy and Mr Fitzgibbon are of no concern or interest to our client and no monies will be paid by our client for rights to which he is entitled under the contract for sale. Special condition 12 of the contract for sale will stand.
7. A postal completion is no longer appropriate and completion must take place at this office.

We note from your letters of 26th May 2005 and 1st June 2005 that your client is prepared to complete the contract for sale which, strictly without prejudice, is also what our client wants, however, this letter and the proposals therein are strictly without prejudice to the forfeiture and rescission notice which has already been served on you.

We should be obliged if would take your client’s instructions to the above, strictly without prejudice, proposal and revert by return failing which we confirm that we have authority to accept service of proceedings in this matter.”

It is sufficient to say that the matters dealt with in paragraphs 3, 4, 5 and 6 represented an attempt to deal with variations to the contract sought by the purchaser. The sale did not complete by the deadline set. The vendor by letter dated 16th June 2005 indicated a willingness to complete on the 17th June 2005 but again completion did not take place.
Before describing what next happened it is necessary to identify the persons involved and their relationship to the transaction. Mr Fitzpatrick is the vendor’s auctioneer. Mr Hickey is a partner in the firm of solicitors having carriage of the sale on behalf of the vendor but is also married to the vendor’s daughter Anne Courtney junior who is a tax consultant by profession. Mr Fowler is a partner with Mr Hickey in the vendor’s solicitors. Mr Gavin is the purchaser’s solicitor. Of significance is the circumstance that Mr Hickey and Ms Courtney were on holiday in Kerry from the 28th or 29th June and returned to Dublin on the 11th July to attend an appointment in Crumlin Hospital with their daughter’s consultant at 10.30 a.m. Mr Gavin was abroad until the 7th July and returned to his office on the morning of 8th July.
Mr Fitzpatrick, the auctioneer, gave evidence that throughout the course of the transaction the purchaser and Ms Courtney were in contact with him. On the 4th July 2005 he received a telephone call from Ms Courtney. She instructed him to contact the vendor with a view to closing the sale on Monday the 11th July without prejudice to “what was going on between the respective solicitors” and instructed him not to enter into correspondence. He made contact with the purchaser immediately and conveyed to her Ms Courtney’s instructions to him. Ms Courtney gave evidence of the phone conversation with Mr Fitzpatrick but on her account she had asked him to arrange for a meeting for roughly 2 o’clock on the 11th July so that the parties could talk. She heard nothing back from Mr Fitzpatrick and on returning to Dublin on the 11th July she did not know whether or not anything was to happen that day.
There was thus a conflict on the evidence as to whether the meeting was to close the sale or to talk and see if the sale could be progressed. Mr Fitzpatrick kept a note of his telephone conversation with Ms Courtney in the following terms:

“Phone call from A.C. Tell purchaser to arrange to close sale Monday next 2 p.m. in accord with contract. No correspondence. Informed Therese McCarthy.”

The learned trial judge’s finding on the evidence is set out by her as follows:
“There is a conflict as to what was the purpose of the meeting which was to take place at 2 p.m. on 11th July 2005. Ms Courtney’s evidence was that she did not say it was to “close” the sale; it was to talk, to see if the matter could be progressed. Mr Hickey’s evidence was that the meeting was to be a face to face meeting in his office to see if something could be done. Mr Fitzpatrick’s evidence was that Ms Courtney asked him to contact the defendant with a view to closing the sale on Monday 11th July 2005. I am satisfied that Mr Fitzpatrick’s note properly reflects what he was instructed to do, save that it does not record that he was told that the meeting was to be in the offices of the plaintiff’s solicitors in Dublin. The purpose of the meeting was to close the sale. Of course, there was always a possibility that at the meeting it would not be possible to achieve consensus on some matter and that the sale would not be completed. However that possibility, in my view, does not justify the nuanced account of the offer to be conveyed by Mr Fitzpatrick given by Ms Courtney and Mr Hickey. Mr Fitzpatrick was instructed not to do anything to prejudice the position which had been adopted by the plaintiff, that the contract had been rescinded and the defendant’s deposit forfeited and, in that context, he was told not to issue any correspondence.

I am satisfied that Mr Fitzpatrick complied with the instructions he had been given.”

Mr Gavin returned from holiday abroad on the evening of 7th July and attended at his office on the morning of Friday 8th July. He was contacted by the purchaser and some time after 9 o’clock on the 11th July he rang the vendor’s solicitors’ office and asked for Mr Hickey. He was told that he was on holidays and he then asked for Mr Fowler to be told that Mr Fowler would not be there that day. Mr Gavin said that he would ring back on Monday. By fax he then forwarded maps to be attached to the wayleave agreement and made it clear that he would be satisfied with an undertaking from the vendor’s solicitor to furnish a deed granting the same with the original maps attached.
First thing on Monday 11th July Mr Gavin again telephoned the vendor’s solicitors office. He was told that Mr Hickey was on holidays. He asked for Mr Fowler and was told that he was in court and would be there all day. He explained the urgency of the phone call in that there was a 2 o’clock deadline and asked that Mr Fowler ring him. He had arranged for the balance of the purchase money to be transferred to the account of the vendor’s solicitor and his bank confirmed to him before lunch that the monies were then going through. At 11.30 a.m. Mr Fowler telephoned Mr Gavin. Mr Gavin informed Mr Fowler that the balance of the purchase monies were being transferred that day. Mr Fowler told him that he was in court and could not complete that day but would so the following day. Mr Gavin did not make arrangements to travel to Dublin on the 11th July as his expectation was that the matter could be completed by post. However if closing at the vendor’s solicitor’s office was required he could have arranged for some one from his office or his sister, a solicitor practising in Dublin, to attend on his behalf and this would not have presented a problem. At 12.30 p.m. Mr Gavin received a phone call from Mr Hickey who enquired as to why he was not in Mr Hickey’s office to complete the transaction. This was the first he had heard that it was to be a closing at the vendor’s solicitors office and explained that to Mr Hickey. He told Mr Hickey that the balance of the purchase money was being transferred at that moment. Mr Hickey said “it is too late now”. Mr Gavin offered to release the money there and then and Mr Hickey replied “it is too late, the sale is off”. Following that telephone conversation Mr Gavin, by fax, authorised the vendor’s solicitor to release the balance of the purchase monies to the vendor. In reply to this Mr Hickey sent a fax confirming that the sale was rescinded and the deposit forfeited and that the matter was at an end.

The Agreement for Sale
The agreement for sale is in the Law Society of Ireland Form 2001 edition. General Conditions 24, 25 and 26 deal with completion and interest in the following terms:
“24 (a) The Sale shall be completed and the balance of the Purchase Price paid by the Purchaser on or before the Closing Date.
(b) Completion shall take place at the Office of the Vendor’s Solicitor.
25. (a) If by reason of any default on the part of the Purchaser, the purchase shall not have been completed on or before the later of (a) the Closing Date or (b) such subsequent date whereafter delay in completing shall not be attributable to default on the part of the Vendor

(i) the Purchaser shall pay interest to the Vendor on the balance of the Purchase Price remaining unpaid at the Stipulated Interest Rate for the period between the Closing Date (or as the case may be such subsequent date as aforesaid) and the date of actual completion of the Sale. Such interest shall accrue from day to day and shall be payable before and after any judgment and

(ii) the Vendor shall in addition to being entitled to receive such interest, have the right to take the rents and profits less the outgoings of the Subject Property up to the date of the actual completion of the Sale

(b) If the Vendor by reason of his default shall not be able, ready and willing to complete the Sale on the Closing Date he shall thereafter give to the Purchaser at least five Working Days prior notice of a date upon which he shall be so able ready and willing and the Purchaser shall not be before the expiration of that notice be deemed to be in default for the purpose of this Condition provided that no such notice shall be required if the vendor is prevented from being able and ready to complete or to give said notice by reason of the act or default of the Purchaser.
(c) The Vendor shall not be entitled to delay completion solely because of a dispute between the parties with regard to liability for such interest or as to the amount of interest payable PROVIDED ALWAYS that such completion and the delivery of any Assurance on foot of these Conditions shall be had strictly without prejudice to the right of the Vendor to pursue his claim for interest.
26. The submission of an Apportionment Account made up to a particular date or other corresponding step taken in anticipation of completing the Sale shall not per se preclude the Vendor from exercising his rights under the provisions of Condition 25 and in the event of such exercise the said Apportionment Account or the said other corresponding step shall (if appropriate) be deemed not to have been furnished or taken, and the Vendor shall be entitled to furnish a further Apportionment Account.”

Relevant to the appeal are two special conditions - special conditions 11 and 12 which provide as follows:-

“11. In the event that Clare County Council or An Bord Pleanala, as the case may be, in granting planning permission for development of the Sold Lands require that access to the Sold Lands be routed to Ballybeg Road in lieu of the Rocky Road then the Vendor shall grant to the Purchasers for the benefit of the Sold Lands the non-exclusive right in common with the the Vendor and all others have like rights from time to time for the benefit of the Sold Lands and every part thereof to go pass and repass at all times and for all purposes with or without animals, carts or vehicles over that part of the Retained Lands as shall be made available by the Vendor to the Purchaser to enable the Purchaser to construct a road footpath grass margins and kerbs upon the Retained Lands together with services thereunder for the purpose of enabling the Purchaser to have access to the Sold Lands from the Ballybeg Road so that the purchaser may develop the Sold Lands. It is agreed that the ownership of the roads footpaths grass margins and kerbs together with services thereunder will remain with the Vendor until such time as they are taken in charge by the local authority. The Purchaser shall enter into an indemnity in relation to the repair, maintenance and insurance of all such roads footpaths grass margins kerbs and services, etc. as are constructed upon the Retained Lands until taken in charge by the local authority and shall indemnify the vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given.

12. The Purchasers shall within the Perpetuity Period at their own cost and expense construct on the Sold Lands roads, footpaths, grass margins, kerbs and services for the purposes of the development of the Sold Lands and shall bring such roads, footpaths, grass margins, kerbs and services to a point two metres inside the boundary of the Retained Lands such that the Retained Lands are connected by such roads, footpaths, grass margins, kerbs and services to the public roadway and services to enable the Vendor to connect into such roads, footpaths, grass margins, kerbs and services for the benefit of the Retained Lands and every part thereof. The Purchaser shall enter into an indemnity in relation to the repair, maintenance and insurance of all such roads, footpaths, grass margins, kerbs and services, etc. as are constructed upon the Sold Lands until taken in charge by the local authority and shall indemnify the Vendor her successors and assigns from and against all actions costs damages claims or expenses which may be incurred or borne by the Vendor as a result of the failure of the Purchaser to comply with such indemnity in that regard given.”

The Pleadings and The Issues before the High Court
The proceedings were instituted by the purchasers seeking a declaration that the agreement for sale of 4th March 2005 had been validly determined, that the deposit had been validly forfeited and that the purchaser holds no contractual or other right, title or interest in the lands agreed to be sold. The defence and counterclaim delivered by the purchaser consists of denials and pleads that the course of conduct between the vendor and the purchaser had the effect that there was a further concluded oral agreement for completion of the sale on the 11th July 2005. By her counterclaim the defendant sought specific performance of the agreement for sale dated 4th March 2005 or in the alternative of the agreement complete on 11th July 2005. The purchaser delivered an amended defence and counterclaim in which she claimed the following additional relief:-

“If necessary a declaration that the plaintiff is estopped from relying on the purported rescission of the contract of 4th March 2005 or forfeiture of the defendant’s deposit in respect of same by reason of the defendant’s reliance on the plaintiff’s conduct of negotiations leading to a revival of the said agreement and waiving the purported rescission of same by agreeing to closure of the sale on 11th July 2005 by which date the defendant had acted to her detriment by paying the full amount of consideration under contract to the plaintiff.”

On the issues before the High Court the learned High Court judge held that the agreement for sale had been validly determined by the vendor and the deposit validly forfeited and indeed this was accepted at the hearing before this court by the purchaser. The correspondence of 2nd June 2005 and 27th June 2005 were characterised by the purchaser in her pleadings as “negotiations … for the purpose of reinstating the sale to the defendant … on certain terms.” The learned trial judge held that the purchaser never intimated a willingness to complete the contract in accordance with those terms and accordingly the original contract remained determined and the vendor was no longer obliged to complete it. The events which occurred between 4th and 11th July, the learned trial judge held, did not create a new contractual relationship between the vendor and the purchaser and any question of compliance with the Statute of Frauds (Ireland) Act 1695 or part performance did not arise. She so found on the basis that the purchaser did not meet the vendor’s requirements by closing on the 11th July. The purchaser’s solicitor failed to turn up to complete, the purchaser did not tender or evince an intention to pay interest, in relation to special condition 11 the right of way remained at large although the vendor had conceded the purchaser’s request for a grant of the same at closing and that there was no commitment by the vendor to comply with special condition 12.
The learned trial judge then considered the events between 4th and 11th July 2005 in terms of estoppel. The test for estoppel as set down by the Supreme Court in Doran v. Thompson Ltd [1978] I.R. 223 at 230 by Griffin J. is as follows:-

“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no promise or assurance had been made by him, and that he may be restrained in equity by acting inconsistently with such promise or assurance.”

See also Ryan v. Connolly

[2001] 1 IR 627 at 632 per Keane C.J.

The learned trial judge found that Mr. Fitzpatrick informed the purchaser that the vendor would close the contract in accordance with the contract at her solicitors’ office at 2 p.m. on 11th July 2005. The learned trial judge held that the purchaser did not meet this requirement in two particulars in the following terms:-
1. As to interest -

“If completion took place in accordance with the contract, the defendant would have been liable for interest. She never evinced any willingness to pay interest and therefore as I have found she was not willing or prepared to complete on 11th July 2005 in accordance with the terms of the contract.”

2. As to the requirement for a face to face closing –

“The plaintiff’s case is that the requirement for a face to face closing in the plaintiff’s solicitors offices in Dublin was imposed to obviate the difficulties which had been encountered in the transaction previously, for example, the issue of the location of the access to Ballybeg Road. The defendant’s solicitor was not in Dublin at 12.30 p.m. on 11th July 2005 and it is reasonable to assume that he could not have been in Dublin by 2 p.m. Given what had transpired previously and what was still outstanding between the parties I doubt if that would have been a practical solution. In dealing with the contractual situation I sidestep the issue of the failure of the defendant and her solicitor to appear at the plaintiff’s solicitors offices at the appointed hour. However, in the context of the application of the principles of equitable estoppel, if all other things were equal, in other words, if before the appointed hour the defendant had indicated a willingness to complete in accordance with the terms of the contract including the payment of interest, given the breakdown of communication within the plaintiff’s solicitors office and the failure to give Mr. Gavin any response either on 8th July or on the following Monday morning I think the equity of the situation would have been in favour of the defendant. However that is entirely hypothetical”.

The learned trial judge’s findings on the issue of estoppel are as follows:-

“(a) the plaintiff, through her agent Mr. Fitzpatrick, expressly represented to the defendant in a clear and ambiguous manner that, if the defendant was able and willing to complete the purchase in accordance with the terms of the contract in her solicitors offices at 2 p.m. on 11th July she would complete.

(b) That representation was intended to affect the legal relations between the plaintiff and the defendant and to be acted on by the defendant, although, as I have concluded, it did not create a new contractual relationship. In my view, equity would not have permitted the plaintiff to resile from that representation between 4th and 11th July 2005. While not conceding that an estoppel could not arise at all, counsel for the plaintiff submitted that at most there was merely a suspension of the plaintiff’s legal rights. In my view, the effect of the representation was the plaintiff’s legal rights were suspended in the period in question.

(c) While, following the representation, the defendant acted and she suffered a detriment in the sense that she drew down the sum of €1,620,000 from AIB and became liable on that sum for a period of approximately one week, in my view, it would not be correct to say that she acted and suffered that detriment on foot of the representation. The representation was that the plaintiff would close on terms of the contract, which included the payment of interest. Indeed in advancing her claim the defendant recognised that if she was successful she would be liable to pay interest, at any rate for the period 8th April 2005 to 11th July 2005. The position adopted by the defendant and acted upon was that she was closing on her own terms and, in particular that she was not liable for interest under the contract and could leave the precise definition of the access to Ballybeg Road at large until after completion.

(d) Given the failure of the defendant to indicate an ability and willingness to complete in accordance with the terms of the contract by 2 p.m. on 11th July 2005 the plaintiff’s representation was spent and she was entitled to revert to reliance on her legal rights arising out of the termination of the contract”.

For these reasons the issue of estoppel was determined in favour of the vendor.

The Appeal
Before this court the purchaser’s case was exclusively based on estoppel and in this regard it is necessary to examine in some detail the evidence given in the High Court:-
(i) The evidence of Mr. Hickey

He was on holidays in Kerry from 28th or 29th June. He left his partner Mr. Fowler to deal with the file and memoed to him that while he was away he was to contact the witness if anything occurred on the file. Prior to 11th July he had no communication from Mr. Fowler. To his knowledge his wife, Anne Courtney, made contact with Mr. Fitzpatrick the auctioneer. As far as he was aware the purchaser had been in contact with Mr. Fitzpatrick looking for a last chance to close. There were a number of conversations between his wife and Mr. Fitzpatrick: Anne Courtney conveyed to Mr. Fitzpatrick that one last effort to complete might be made without prejudice to the vendor’s position. This would require a face to face meeting in his office and 2 o’clock on the11th July was stipulated. This was to fit in with an appointment for his daughter with a consultant in Dublin on that morning. On 11th July between 11.30 a.m. and 12.15 p.m. he received a telephone call from Mr. Fowler. He was told that Mr. Gavin, the purchaser’s solicitor, was looking for him. Mr. Fowler had returned Mr Gavin’s call and told him that he knew nothing about the matter and that Mr. Hickey would be dealing with it. As a result he telephoned Mr. Gavin at about 12.30 or 12.45 p.m. His evidence of that phone conversation appears from the transcript as follows-

‘I started off with really, Colm, where are you, I expected to see you in my office. He said I am tied up or I am out of the office but the money is going to be electronically transferred. I said Colm – it was made clear that the only way this could happen is a meeting in the office and you are not there, you know, we have had enough and, you know, that’s the end of the manner there is nothing that we can do from here’.

Mr. Gavin asked what would it take to deal with the matter that day and Mr. Hickey replied that he would have to take instructions and that the monies would have to be released. There was no discussion on interest. He obtained instructions from the client. He went to his office and then saw the correspondence from Mr. Gavin of the 11th July. He then wrote his letter of 11th July to Mr.Gavin indicating that the matter was at an end.

In cross examination Mr. Hickey said that he was in a position to complete on 11th July. His understanding of the conversation between Anne Courtney and Mr. Fitzpatrick was that Mr. Gavin and his client would appear at his office to progress the matter and see if it could be completed. He wanted Mr. Gavin at the completion personally. The witness believed that Mr. Fowler had told him that Mr. Gavin was going to be in court and could not deal with the matter on the 11th. He had made it clear in his letter of 2nd June that a postal closing was out of the question. Subsequent to the 11th July a contract was entered into with a member of the vendor’s family for the sale of these lands together with other lands for €2,600,000. Mr. Hickey was asked what was blocking progress on 11th July and replied “Colm Gavin’s absence”. As of the 11th July it was far from clear to Mr. Hickey whether the purchaser had any intention of complying with condition 12 of the contract.

(ii) Anne Courtney

The witness is the plaintiff’s daughter and the wife of Mr. Hickey. She is a tax consultant specialising in property investment. She was in regular contact with Mr. Fitzpatrick. He telephoned her to know if there was any way in which the vendor would consider one last chance and having spoken to the vendor it was decided that one last chance would be given to the purchaser. She contacted Mr. Fitzpatrick in early July. She told them that without prejudice to the original contract the vendor would complete and that the purchaser should arrange a meeting for roughly 2 o’clock with her solicitor and that the parties could talk. She heard nothing back from Mr. Hickey. She did not know if the matter would close on 11th July but hoped that it would. She did not agree with Mr. Hickey’s manuscript note in that she would not have said the word close but rather that they should meet to see if the matter could be progressed.

(iii) Mr. Fitzpatrick

He received a telephone call from Anne Courtney on 4th July 2005. She asked him to contact the purchaser with a view to closing the sale on Monday 11th July without prejudice to what was going on between the respective solicitors and that she did not want any correspondence. He was to ask the purchaser to contact her solicitor to make arrangements to close the sale at 2 p.m. on Monday 11th July at the office of the vendor’s solicitor. He spoke to the purchaser immediately. He told her that there was an opportunity to close the sale in accordance with the terms of the contract and that this was without prejudice. On a later day but before 11th July the purchaser asked what was the position with regard to the open space and what was the position with regard to the wayleave for the sewerage and he informed her that that as far as he was concerned they were agreed in principle, there was not a problem with them provided the mapping was agreed in both places and he did not expect a problem. He had discussed these matters with Mr. Hickey on an ongoing basis.

In cross examination he agreed that the wayleaves were not a sticking point between the parties. He did not know what was going on in relation to interest and it was not raised with him. It was an issue which was bound to raise its head many months later. He was aware that Mr. Hickey was on holidays and he asked Ms. Courtney who would deal with the closing and was told that Mr. Fowler would do so. He told the purchaser that Mr. Fowler would be dealing with the closing.

(iv) Ms. McCarthy

The purchaser gave evidence. She is a management consultant. Her father is a building contractor and property developer and own lands adjoining the lands agreed to be sold. She was buying the property on her own behalf and not on behalf of her father. At the time she was working in Clare in premises called ‘The Kings’, five bars and a restaurant, owned by her father. After the contract had been terminated she was in constant touch with Mr. Fitzpatrick. On 4th July 2005 Mr. Fitzpatrick told her the deal is back on again and that it was to close on 11th July at 2 p.m. as per the original contract, no conditions. The wayleaves and open space were not a sticking point. After the conversation with Mr. Fitzpatrick she spoke with her father who in turn spoke to Mr. Hickey and she understood that no interest would be payable. If interest was payable it would have been paid. She would have asked her father to help. She contacted Mr. Gavin on 5th July and instructed him to work towards a closing. She contacted the bank and arranged the balance of the purchase money. It was quite clear in her discussion with Mr. Fitzpatrick on 4th July that what was to take place on 11th July was a closing. On 11th July Mr .Gavin told her of his conversation with Mr. Fowler and of his conversation with Mr. Hickey. So far as she was concerned there were no outstanding issues on 11th July. While it was her understanding that no interest would be payable, if it was, it would be paid.

In cross examination the witness agreed that the vendor was insisting on the contract but being co-operative on the matters arising under special conditions 11 and 12. However the arrangements for the 4th July were on the terms of the contract. With regard to interest on 4th July Mr. Fitzpatrick told her that completion was as per the contract and from this she understood that what was payable was €1,800,000. She could not write to clarify because of the terms stipulated – no correspondence. This was also her understanding of conversations which she had with Mr. Fitzpatrick after 4th July. Mr. Fitzpatrick did tell her that the completion had to be in Dublin. Issues surrounding special condition 12 would not have delayed the completion.

(v) Mrs. Anne Courtney (the vendor)

Her evidence essentially was that she did not get personally involved in the transaction but left everything to her solicitor Mr. Hickey. On 11th July she told Mr. Hickey to do whatever he thought fit. She believed that the purchaser was to attend the closing and the reason the sale did not complete was that the purchaser did not turn up on time.

(vi) Michael Early

The witness is the manager of the AIB Bank, Bank Place, Ennis, Co. Clare. The balance of the purchase money was transferred to the account of John Shields and Company, the vendor’s solicitor, at 1.12 p.m. on 11th July. The transaction was instantaneous in that funds leave the account of the transferor and are posted to the accountant of the transferee at the same time.

(vii) Mr. Gavin

Mr. Gavin is a solicitor and acted for the purchaser. He was away from his office and returned on 7th July. After 9 a.m. on 8th July he telephoned the vendor’s solicitors and asked for Mr. Hickey to be told that he was on holidays. He then asked for Mr. Fowler and was told that he would not be there that day. He said he would ring back on the Monday but that the matter was extremely urgent. His understanding at that time was that the sale was to be completed on 11th July and in accordance with the terms of the original contact. With regard to special condition 11 he would accept whatever access was being offered. With regard to interest his client had told him that no interest was payable. He was hoping to speak to Mr. Fowler regarding interest. He felt interest would probably be payable and he would have advised his client to pay it. On Monday 11th July first thing he again telephoned the vendor’s solicitors. He asked for Mr. Hickey and was told that he was on holidays. He asked for Mr. Fowler and was told that he was in court and would be there all day. He explained the urgency to the receptionist as he had been told that there was a 2 o’clock deadline, that he was arranging for monies to be put through and he asked her to have Mr. Fowler ring him. This was shortly after 9 o’clock. He arranged with the bank for the monies to be transferred. As far as he was concerned there was no difficulty about deeds or other documents. Normally such transactions are closed by post. At 11.30 a.m. he received a phone call from Mr. Fowler and he told him that he was putting the monies through. Mr. Fowler told him that he was caught in court and could not complete at that time but that he would do it the following day and the witness agreed with this. He did not travel to Dublin on 11th July because normally he would complete such a sale by post. If a face to face closing was required he would either have travelled himself or someone from his office would have travelled but this was not done because there was nobody available in the vendor’s solicitors’ office to confirm what was to happen. He could have had his sister who is a solicitor in Dublin complete on his behalf as she had done in previous cases. At about 12.30 p.m. he received a telephone call from Mr. Hickey who asked him why he was not in the office to complete the transaction. He replied that this was the first time he understood that it was to be a face to face completion but that he had been trying to get through to the vendor’s solicitors and could not communicate with anybody. Mr. Hickey told him that it was too late as he wanted the money to go back with his mother-in-law to Kerry. Mr. Gavin told him that he was quite happy to release the money. Mr. Hickey replied that it was too late and that the sale was off. The witness had been in practice as a solicitor for some 38 years. If the client had not got the interest he would have arranged it with AIB, his own bank, and debited his office account with the amount of the same and paid it over. He would have got it back from the purchaser’s father whom he knew and trusted. He would have asked his own bank to do an immediate credit transfer from his office account. Had the meeting taken place at 2 p.m. on 11th July the transaction would have completed. In cross examination the witness said that he would not have made any issue about special condition 12 of the contract but would have been delighted to complete. With regard to the right of way all he was entitled to was what was clearly set out in the contract and that is what he expected to get on 11th July. He agreed that in earlier correspondence he had disputed the vendor’s entitlement to interest. His instructions from his client were that the matter was to be completed by 2 o’clock on 11th July. In practice interest is regularly sought and not paid or the sale is closed without prejudice to interest being charged. A lot of solicitors never charge interest. In this case if it was sought it would have been paid and he had advised his client that it would have to be paid. He had been unable to speak with either Mr. Hickey or Mr. Fowler concerning interest. The witness was unclear as to whether his client had told him that the sale was to be closed in Dublin. He had failed to communicate with either Mr. Hickey or Mr. Fowler and if they had told him that he would have to be there at 2 o’clock he would have been there to complete. He received a telephone call from the purchaser while in England concerning the appointment to complete on 11th July. The position then bore very little relationship to what had gone before. As of 2nd June there were matters outstanding but they were not outstanding as at the 7th July. As a result of his conversation with Mr. Fowler on 11th July he understood that time had been extended until the following day to deal with the matter. He may well have told the purchaser that he did not need her at the closing and he never brought a client to a closing. The availability of the monies was all that mattered. He did not need his client at the closing as there were no issues or problems and he had instructions to complete on terms of the original contract. He had made no arrangements on the morning of 11th July to travel to Dublin but could have been in Dublin or could have had some one deal with the matter on his behalf and that was not a problem. The reason he did not make arrangements to be in Dublin at 2 o’clock was because of the telephone conversations on 7th July and the 11th July with the office of the vendor’s solicitor when neither Mr Hickey nor Mr Fowler were available He could not get any communication from anybody who was dealing with the transaction. On 11th July he did not get an opportunity to say that he would travel to Dublin. Had he the opportunity to speak to someone he would not have required an undertaking in relation to the grant of rights of way as he was aware that all he was getting was what was in special condition 11 of the contract. He did not expect interest to be waived at the completion but he would probably have requested. He had not been sent a closing statement for the 11th July. Special condition 12 was of no consequence to him and all he wished was to complete. He did not have an opportunity to tell Mr. Hickey this in the phone conversation.

Mr. Fowler did not give evidence.

Conclusions

The learned trial judge made the following primary findings of fact:

1. As of the 4th July 2005 the original contract remained rescinded.
2. On the 4th July 2005 the plaintiff indicated her willingness to complete the contract in accordance with its terms provided that there was a closing at the offices of the plaintiff’s solicitors at 2 p.m. on 11th July 2005.
3. This amounted to a clear and unambiguous representation, promise or assurance sufficient to found an estoppel. The defendant acted upon the same by altering her position to her detriment in drawing down the finance to complete and accordingly it was not open to the plaintiff to revert to the previous legal relations between the parties.
4. On the 8th July 2005 Mr Gavin was unable, through no fault of his, to contact either Mr Hickey or Mr Fowler.
5. On the 11th July 2005 at 11.30 a.m. Mr Gavin received a telephone call from Mr Fowler and was told that the transaction could not complete on that day but would complete on the following day.
6. On the 11th July at 12.30 p.m. Mr Gavin received a call from Mr Hickey in which he was told that the sale was off. This was confirmed by letter sent by fax later that day.

The effect of the telephone conversation between Mr Gavin and Mr Fowler on the 11th July 2005 at 11.30 a.m. is that the promise or assurance given by the vendor was for her convenience (albeit the convenience was that of her solicitors) altered by substituting for the 11th July 2005 the 12th July 2005 for completion. In the circumstances of this case it is immaterial whether the effect was that the sale should be completed at 2 p.m. on the 12th July or at a time to be agreed or at a time to be stipulated by the vendor’s solicitors.
The learned trial judge held that the plaintiff’s legal rights were suspended in the period in question which she took as being until 2 p.m. on the 11th July 2005 and that after that date and time it was not unconscionable for the plaintiff to rely on her legal rights. I differ from the learned trial judge in that I am satisfied that the vendor’s entitlement to resile arose only on the 12th July 2005 and whether at 2 p.m. on that date or at a time to be agreed or at a time to be stipulated by the vendor is immaterial. However the vendor did not await 2 p.m. on the 11th July but purported to resile at 12.30 a.m. on the 12th July 2005. It is quite clear on the evidence that the reason this occurred was a lack of communication between Mr Fowler and Mr Hickey, the former not having informed Mr Hickey that he had told Mr Gavin that the sale could not be completed on the 11th July but would have to be completed the following day.
A number of matters weighed with the learned trial judge. Mr Gavin did not attend at the appointed hour to complete the sale. His intention had been to close the sale by post until his conversation with Mr Hickey at 12.30 p.m. He had not been informed of this requirement by the purchaser. Had he been aware of the requirement on the 11th July his evidence was that he would have attended. If the time available to him was insufficient to travel to Dublin he could have arranged for a solicitor in Dublin to attend the closing on his behalf. The balance of the purchase price had already been transferred electronically. I am satisfied that under the original concession by the vendor the purchaser was entitled to attend to complete until 2 p.m. on the 11th July and there was no entitlement in the purchaser to bring this time forward and withdraw the concession at 12.30 p.m. on that day. A fortiori the date for completion having been extended by Mr Fowler to the 12th July, there was no entitlement in the vendor to withdraw her concession at 12.30 p.m. on the 11th July.
The learned trial judge held that the vendor did not tender or otherwise evince a willingness to discharge the interest due under the contract. However it was not a term stipulated by the vendor that she should do so. I am satisfied that there was no obligation on her to do so. Her obligation was to complete in accordance with the terms of the contract. It was conceded before this court that there was no bona fide dispute as to interest and it may be in these circumstances that general condition 25(c) has no application. In these circumstances the purchaser’s entitlement was to present at the closing and to complete paying interest or to suffer the consequence of the vendor resiling. However the purchaser was not afforded this opportunity by virtue of the conduct of the vendor in purporting to resile at 12.30 p.m. on the 11th July in advance of the time stipulated 2 p.m. and indeed in advance of the altered date the 12th July 2005.
I am satisfied that the vendor was not entitled so to resile from the promise or assurance given as varied in the telephone conversation between Mr Gavin and Mr Fowler. Mr Gavin’s evidence as to the contents of that phone conversation was uncontroverted: Mr Fowler did not give evidence.
As to the other matters which were in issue between the parties at earlier stages of their dealings, namely a commitment to comply with special condition 12 of the contract for sale and whether a grant of right of way to Ballybeg Road pursuant to special condition 11 of the contract for sale should be furnished at completion or left over till later, these were not nor could they be in issue at completion as a term of the concession made by the vendor was that there should be completion in accordance with the contract.
Having regard to the foregoing I would grant the defendant the order for specific performance which he seeks. Further the purchaser having made the concession in this court that interest was payable from the closing date up to the 11th July 2005 there is no dispute as to the liability to pay interest. It will not be open to the purchaser to rely on general condition 25(c) and to seek to close without paying interest and a condition of the order for specific performance accordingly will be that interest will be paid for that period at completion.

Courtney v. McCarthy

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Courtney -v- McCarthy [2007] IESC 58 (04 December 2007) URL: http://www.bailii.org/ie/cases/IESC/2007/S58.html Cite as: [2008] 2 IR 376, [2007] IESC 58