The High Court entered judgment for Killkerk Limited for €1,475,580 in a dispute over the construction of Tipperary Town Shopping Centre, while staying execution and registration in respect of €244,116 pending arbitration of the defendant’s cross-claims.
Mr Justice Kelly’s 16 July 2009 ruling resolved two applications: the defendant’s request to stay the court proceedings under the arbitration clause, and the plaintiff’s application for summary judgment. The court did not decide whether the alleged defects or other cross-claims were made out. It directed that they be dealt with in arbitration.
Under a 2007 contract, Killkerk agreed to build the centre for Shane Houlihan. The final stage payment was €1.3 million plus VAT. The architects issued a practical completion certificate on 21 September 2007, and the plaintiff later demanded the final payment. Houlihan did not pay and raised concerns about alleged problems including the roof, block work, sprinkler system, gas tank, tarmacadam and sewage system.
The judgment records that the defendant’s latest estimate for completion and remedial work was €1,510,040, while actual expenditure to that point was €244,116. The court noted that the claimed costs had increased over time. It also noted that arbitration had been invited several times, with the plaintiff’s first request dating to May 2008, and that the defendant had shown little interest in arbitration until the litigation began.
The judge found that the contract did not exclude an equitable set-off for cross-claims arising from the same contract. He directed that those claims proceed to arbitration under the parties’ agreement. The court nevertheless entered judgment for the full sum claimed, €1,475,580, which included the final payment and VAT.
Execution and registration of the judgment were stayed only in respect of €244,116, until the arbitration determines the cross-claims. The court gave liberty to apply if the defendant did not progress the arbitration. The ruling did not stay the entire judgment or determine the ultimate value or merits of the cross-claims.