The Court of Appeal has dismissed Keith Cooke’s appeal against a High Court order requiring him to complete the purchase of a commercial unit in Unit 12. The appeal court also rejected challenges to the High Court costs award.
The dispute concerned a 2006 contract to buy the unit for €330,000 plus VAT. Before completion in March 2007, Cooke’s solicitor reported a strong diesel odour. An engineer and an estate agent also reported an odour during visits. Cooke sought to withdraw from the sale and recover his €33,000 deposit.
The seller, Wynn Clons Development Ltd, maintained that Cooke was not entitled to withdraw. It later tried to resell the unit, but a proposed sale at €300,000 plus €10,000 for a car parking space fell through. The unit remained in the company’s ownership.
In 2012, the High Court ordered specific performance and dismissed Cooke’s counterclaim. On appeal, Cooke argued that the trial judge’s assessment of the evidence about the odour was against its weight; that the seller had abandoned specific performance by seeking other remedies and attempting a resale; and that High Court costs were not justified without evidence that the property’s rateable valuation exceeded Circuit Court jurisdiction.
The Court of Appeal found that the seller’s 2007 completion notice retained several possible remedies, including specific performance. Its attempt to market the unit, the court said, was an effort to mitigate potential loss and did not amount to an unequivocal election to abandon specific performance. The appeal court also concluded that the seller had continued to pursue specific performance at trial, with damages sought in lieu because it doubted Cooke could complete the purchase.
On the odour issue, the appeal court noted conflicting testimony. The only scientific assessment, conducted in 2011, found no hydrocarbons and no health or safety risk to staff. The court said the trial judge could conclude that, even taking the purchaser’s evidence at its highest, it did not establish a noxious smell that made the unit unfit for habitation or unsuitable as an office. That finding was supported by credible evidence, so the appeal court would not interfere.
The costs argument also failed. The rateable valuation had not been raised before the trial judge, and no evidence on it had been given. The Court of Appeal said it could not address the jurisdiction issue anew on appeal. It dismissed the appeal, leaving the High Court order in place.