The Court of Appeal has dismissed an appeal by Top Security Limited against a High Court order awarding Action Alarms Limited €148,324.89 for unpaid commission, VAT and interest.
The appeal concerned commission on customers introduced by Action to Top for alarm monitoring. In 2008, Action began seeking to move those customers to its own monitoring service under a 1989 agreement. About 700 of roughly 804 customers transferred. The dispute concerned commission for the roughly 100 who remained with Top.
Top argued that there was no binding agreement requiring it to continue paying commission after Action began seeking transfers. It also contended that Action’s entitlement depended on supporting customers’ relationship with Top, and that Action’s transfer efforts ended that obligation. Top challenged the High Court’s findings that Action continued providing services and that interest should be awarded.
The Court of Appeal upheld the High Court’s conclusion that the parties had an oral agreement, dating from the mid-1980s, under which Top paid Action a share of monitoring fees for customers Action introduced. The court pointed to the parties’ evidence and their course of dealing, including commission reports, invoices and payments over about 20 years. The 1989 letter added a term allowing Top to assign its rights in customer contracts to Action or its nominees; it did not replace the commission arrangement.
The appeal court also upheld the finding that Action’s relevant continuing service was maintaining the physical connection between customers’ alarm systems and Top’s monitoring centre, including responding to connection faults. It found no basis to imply a term ending commission for customers who remained with Top merely because Action had asked customers to transfer. The court also agreed that setting up Action’s monitoring centre and transferring customers reflected the 1989 agreement and did not amount to a repudiatory breach.
On the 1989 letter’s promise of transfer “without penalty”, the Court of Appeal agreed with the High Court that the wording protected Action from penalty for seeking a transfer. It also rejected Top’s challenge to the award of Courts Act interest, concluding that the High Court had considered the delay and given reasons for exercising its discretion.
The court dismissed the appeal and affirmed the High Court order. It proposed that Action receive its costs. Any party seeking a different costs order was given 21 days from electronic delivery of the judgment to notify the Court of Appeal Office; if no notice is received, the order, including the proposed costs order, will be drawn and perfected.