The High Court has found that Express Bus Limited’s option to buy the part of Birmayne House it occupied had lapsed by the time it tried to exercise it, because it had not paid rent in full and on time. The court did not give a final answer on whether the company was in lawful occupation; it deferred that question for further submissions.
The application was brought by Myles Kirby, liquidator of Ethafil Limited, which owns Birmayne House in Mulhuddart, County Dublin. He asked the court to determine the parties’ rights in relation to the property, including Express Bus’s occupation and its claimed option to purchase Lot 2.
Express Bus had agreed in 2015 to help arrange completion of the purchase of the property by Ethafil, in return for a five-year lease of Lot 2 at annual rent of €50,000 and an option to buy that lot for €190,000. The written agreement contemplated additional lease and option documents, but none was completed. Express Bus remained in possession and later sent notices purporting to exercise the option.
The liquidator argued that the agreement was too uncertain to create an option, or that any option had lapsed because rent was unpaid. Express Bus argued that the 2015 agreement itself gave it an enforceable option, which it had validly exercised, and alternatively that it was entitled to a new tenancy.
Mr Justice Allen held that the 2015 agreement created binding rights and obligations without requiring the additional documents to be signed. He found that the lease and option period ran from 18 December 2015, when Ethafil completed its purchase. Express Bus was therefore liable for rent from that date. The court rejected its argument that a €25,000 payment in June 2016 covered three months’ arrears and three months in advance. It concluded that the option had lapsed before Express Bus purported to exercise it.
The judge also found that Express Bus had not become a yearly tenant when its 2012 lease expired in May 2015. Instead, its occupation was under the five-year lease contemplated by the 2015 agreement. Because the court’s analysis did not precisely match either side’s submissions, it reserved the exact answer to the liquidator’s question about lawful occupation. The case was listed for mention on 4 June 2021, when the court was also to hear submissions about costs and the listing of Express Bus’s separate application under section 678 of the Companies Act 2014.