The High Court has dismissed a claim by Harry Peter Jackson and Mary Patricia Jackson for €38,465.96 in interest arising from a delayed property sale, finding they were not ready, willing and able to complete on the agreed date.
Mr Justice McCarthy gave judgment on 25 July 2008. The sellers said interest accrued at €739.73 a day because the sale completed after its closing date. The parties agreed that the matter could be decided as a trial on affidavit evidence. The judge identified 16 April 2007 as the agreed closing date.
The judge said a completion notice served before that date was invalid and irrelevant. It therefore did not make time of the essence or settle a later deadline for completion. He also said interest could not be due if the sellers themselves were unable to complete on the relevant date and the purchaser was not in default.
The purchaser argued that four mortgages remained on the title, although the amounts secured had reportedly been discharged before the sale. The sellers maintained that they could provide good title without producing releases or other documents removing the mortgages, and that the purchaser could seek such documents if he wished.
The judge rejected that position. He found that the purchaser was entitled to a perfected, marketable title and did not have to accept undertakings from the sellers’ solicitors in place of the appropriate mortgage vacates or releases. The purchaser’s solicitors had set out their requirements in a letter dated 31 August 2006, and the judge found no evidence that the purchaser had agreed to waive them.
A separate issue concerned consent under the Family Home Protection Act for the transfer of part of the land. The judge concluded that the wife’s participation in the sale contract constituted prior consent to the transfer. He said that conclusion was irrelevant to the outcome, given his finding about the mortgage releases.
The court found that the sellers were not able, ready and willing to complete on 16 April or 24 May, and that their failure to complete was not caused by the purchaser. Interest was therefore not payable. The judge dismissed the action.