The High Court has ordered the removal of a lis pendens registered against a Dublin property in a dispute over a 2007 agreement, while refusing both proposed changes to the plaintiffs’ claim and the defendant’s request for a preliminary trial.
In a judgment delivered on 13 February 2018, Mr Justice Brian McGovern said the action was essentially a claim for specific performance and/or damages arising from the agreement. It did not amount to a bona fide claim to an interest in the land, he found.
The plaintiffs are Jonathan Bennett, Paul McCleary and Sean O’Donoghue, trading as BMO Partners, and Bennett McCleary Architects Limited. They claim that Earlsfort Centre (Developments) Unlimited Company owes them payment under an agreement dated 13 April 2007. The agreement provided for payment of €165 for each square foot of net apartment space above 35,000 square feet, subject to specified planning conditions.
The three individual plaintiffs had agreed to buy the land from Eugene Murphy for €3.75 million. Under the later agreement, the defendant paid that price to Murphy and paid the plaintiffs a further €1.4 million in return for taking an assignment of their purchase contract. The defendant became the registered owner in 2009. A later planning application made on behalf of Coralvale Limited, now Earlsfort Homes Limited, proposed 65,000 square feet of habitable space. The plaintiffs’ statement of claim alleged this would trigger a further €4.95 million payment. The judgment did not determine whether that payment was due.
The plaintiffs sought to add claims including that the defendant held the site on trust for them and that they had an unpaid vendor’s lien. The judge refused the amendments, finding that the dispute concerned the parties’ contractual rights and that the proposed land-related claims did not reflect the real issues between them. He said the plaintiffs had never owned the land and had not paid its purchase price.
The defendant argued that the lis pendens prevented it from selling or otherwise dealing with the site. The judge found that the proceedings did not claim an estate or interest in land within the relevant statutory provision. He also found that, insofar as the action was being used to justify the registration, it was not being prosecuted bona fide. He ordered the lis pendens vacated. The underlying dispute over the agreement remains to be resolved.
The defendant also sought a preliminary trial on the interpretation of the agreement. The judge refused, concluding that the peripheral issues would not add significantly to the trial and that a preliminary hearing was not appropriate.