The High Court has proposed awarding Michael Begley €59,289.26 in damages after finding that assurances about resolving access problems induced him to complete the purchase of two unusable marina berths in Athlone.
In a judgment delivered on 23 March 2018, Ms Justice Baker found that a collateral contract had been made by or on behalf of Damesfield Limited and John Lally, the first and second defendants. The award was to be made against them jointly and severally. The judge said she would hear counsel about the possible transfer of two alternative berths.
Mr Begley bought berths 56 and 57 at Jolly Mariner Marina Village, alongside two apartments. The judgment records an agreed purchase-price allocation of €40,000 for each berth. A rock outcrop near the pontoon obstructed access. The judge accepted evidence that the berths were unsuitable for the cruiser boats they were designed to accommodate and were, in practical terms, unusable for that purpose.
The court rejected claims that the sale agreements or leases contained an implied promise of navigability, and that the defendants had breached an easement, the covenant for quiet enjoyment, or the rule against derogation from grant. It also dismissed the nuisance claim. The judge said Mr Begley knew of the visible rocks before completing the sale, so the other claims based on the physical condition of the access could not succeed.
However, the judgment accepted Mr Begley’s evidence that he had been assured before completion that access would be improved. Minutes from management-company meetings and related correspondence recorded proposals to dredge the area and seek planning permission. The judge found those records supported his account and that he completed the purchase because of promises that the access problem would be resolved. She held that an actionable collateral contract displaced the usual caveat emptor rule on this point. The contract claim was brought within the six-year limitation period.
The judge declined to order works to make the waterway navigable, accepting that such a remedy was not reasonably achievable. She assessed damages using the berths’ current value, rather than their original cost, and included the cost of renting an alternative berth and service charges already paid. The judgment states that Mr Begley had incurred €19,022.26 in alternative berth rental and paid €5,467 in service charges.
No claim was established against the third defendant, The Jolly M Management Company Limited. The proposed damages award was €30,000 for the current value of the two berths, €19,022.26 for alternative berth rental and €5,467 for service charges, totalling €54,489.26; the judgment nevertheless states a proposed total of €59,289.26. The difference is unexplained in the source. The court also left open whether two alternative berths offered to Mr Begley remained available.