The High Court said it intended to order Value Homes Limited to complete the sale of an apartment to Shirley Fitzsimons, but made the proposed specific performance decree conditional on a further hearing to assess her losses from the company’s delay.
In a judgment delivered on 12 May 2006, Mr Justice Clarke found that Value Homes had failed to complete by the November 2003 deadline in a contract variation. He said any decree should reflect both the agreed €20,000 price increase and an abatement for losses caused by missing that deadline. The amount of the abatement had not yet been determined.
The case concerned apartment 77 at Geraldstown Woods, Santry Avenue, Co Dublin, sold under an affordable housing project. The original agreed price of €142,655.07 included a permitted increase under the building agreement. Fitzsimons had paid a deposit of €12,697.38. The contract initially allowed 18 months for completion, which would have been February 2003.
Fitzsimons accepted in evidence that she signed a variation in early 2003 increasing the price by €20,000 to €162,655.07 and extending completion to 13 November 2003. The judge held that the variation was binding. He found that Value Homes was in breach when it failed to meet the extended deadline. A further proposed variation, which would have raised the price to €180,162.96 and extended completion to June 2004, was not agreed by Fitzsimons.
The judgment records that Value Homes had been allowed additional time to file a defence but failed to do so. In October 2005, the court ordered an assessment of damages. In March 2006, Clarke J refused the company’s application to set that judgment aside. Because the earlier order provided only for damages assessment, the judge then heard Fitzsimons’s application for specific performance. Value Homes’s participation was limited to clarifying facts through cross-examination and making submissions; it was not permitted to contest the facts as though it had filed a defence.
The judge said Fitzsimons was ready and willing to complete and that failure to serve a completion notice did not prevent her from seeking specific performance. He also directed that the apartment be brought to the condition of a new apartment, including appropriate new white goods, before closing. The judgment set a further brief hearing to assess losses and stated that Value Homes could participate on the same limited basis. It did not quantify the losses or make a final decree in the text provided.