The High Court awarded two companies €270,000 in damages after finding Anthony Benesch remained bound by agreements to buy and build two industrial units at Park East Business Park, Ballylynch, Carrick-on-Suir, County Tipperary, but could not raise the money to complete the transaction.
In a judgment delivered on 25 October 2013, Ms Justice Laffoy found the agreements were still in force and had not been ended by repudiation or frustration. The court also found the plaintiffs had been able to fulfil their obligations and complete the sale. As there was no realistic possibility of the sale closing, the judge awarded damages in lieu of specific performance.
The agreements, effective from 20 December 2007, covered the sites for Units 1 and 2 at €26,700 and their construction at €303,300 plus VAT. The plaintiffs initially sought specific performance, which would have required the transaction to proceed. During the third day of the trial, they instead asked for damages, acknowledging Benesch could not comply with such an order. His wife, Eimear Benesch, was removed from the proceedings by consent during the trial.
Benesch disputed that the agreements were enforceable and argued, among other things, that the planning permission was unsuitable, the completion notices were defective, and that the contracts depended on accountant Robert Fitzgerald arranging finance. He also said Fitzgerald had told him he could walk away from the transaction. The judge rejected those arguments, finding the planning permission acceptable to the vendor, the notices adequate for the court’s decision, and no proven condition requiring Fitzgerald to arrange finance. She found it had not been represented that Benesch could withdraw at any time.
The judgment discussed four irreconcilable sets of accounts for Benesch’s kitchen business. The judge said the evidence did not establish that the accounts said to have been obtained from Bank of Ireland were supplied by Fitzgerald Fleming, or who prepared or supplied them. She made no finding about whether those accounts had been deliberately falsified or by whom.
The court accepted a valuation of €45,495 for the two units, rounded their combined value to €50,000, and calculated damages by deducting that figure and the €10,000 deposit from the combined contract prices of €330,000. The judgment awarded the plaintiffs €270,000 against Benesch, leaving them to apportion the sum between themselves. His counterclaim was struck out.