The Court of Appeal has dismissed two appeals by Dunnes Stores in a dispute with Point Village Development Limited (in receivership), leaving in place an order requiring Dunnes to release €15 million, plus accrued interest, from a nominated account to Point Village.
The main appeal concerned clause 11(c) of settlement terms agreed in July 2010. It provided for release of the money within five working days after Dunnes’ solicitors received confirmation that binding agreements for lease had been exchanged for at least seven designated ground-floor units, including at least four internal units.
Dunnes argued that “tenants” in the clause meant tenants of high quality, and that agreements involving two companies did not qualify as binding. The Court of Appeal rejected those arguments. It held that the agreement did not impose a quality threshold on tenants and that the confirmation sent by Point Village’s solicitors on 29 February 2016 met the settlement’s requirements. The letter confirmed agreements for lease for nine designated units, at least four of them internal.
One of the disputed agreements, with Ducas Hospitality Management Limited, was followed about 20 months later by the company’s dissolution. The court said that later event did not undermine whether the agreement was binding when made. A separate agreement with Rossport Retail Services Limited, trading as Kix, allowed either party to rescind if Dunnes had not begun fitting out its store by a long-stop date. Kix later exercised that right. The court held that this was a condition affecting the agreement after it had come into force, and that the agreement was binding when executed.
The court also rejected Dunnes’ claim that Point Village had failed to discuss the ground-floor tenant mix as required by clause 6. It upheld the High Court’s assessment that the required discussion had taken place. It found no basis to require a plenary hearing or to go behind the solicitors’ confirmation, absent fraud or manifest error. The appeal judgment records that fraud had not been alleged and that Dunnes had not established manifest error.
In a separate appeal, Dunnes sought inspection of agreements for lease between Point Village and tenants. The Court of Appeal upheld the refusal of inspection, concluding that the applicable test was similar to the test for discovery and that an earlier Court of Appeal ruling had rejected discovery of the same documents. It also agreed that inspection would serve no purpose in light of the conclusions on the main appeal.
Both appeals were dismissed. The court’s decision left the High Court’s payment order in place and did not grant Dunnes access to the lease agreements.