The Supreme Court has dismissed an appeal by Brendan Kilty in a dispute over fees for the sale of a Sandycove site, upholding a High Court order awarding Campion Property Consultants Limited €356,386.99 plus interest.
In a judgment delivered on 18 July 2011, Mr Justice Finnegan said the trial judge had evidence to support findings that the estate agency had fulfilled its contractual obligations and had authority to sell the properties for €3.7 million. The Supreme Court affirmed the High Court order.
Kilty assembled the site, which included his former family home and two adjoining premises, for a proposed development. After planning difficulties and pressure from Irish Nationwide Building Society to repay short-term borrowing, he engaged Campion Property Consultants under a written agreement. It provided for a fee of 5% plus VAT on the sale price: 3% for acting as sole selling agent and 2% for consultancy services.
The site sold at public auction on 28 April 2004 for €3.7 million, with the sale completed on 16 July. The company sought €231,862.10 in fees, outlay and VAT. Kilty admitted the agreement but argued, among other things, that he had been induced to enter it by false representations, that the company failed to secure a reduction in his debt, and that it mishandled the marketing and auction. Those were pleaded allegations, not findings adopted by the Supreme Court.
After an 11-day trial, the High Court found the company had authority to sell, conducted the auction appropriately, provided the contracted services and had not conspired with or misled Kilty. It awarded €356,386.99 with interest from 31 March 2009. Kilty appealed, challenging the findings on consultancy work, the reserve and the agent’s authority to sell. He also sought permission to introduce further evidence.
The Supreme Court refused that application. It said some proposed evidence was hearsay, some was irrelevant to the appeal, and the rest concerned matters that could have been addressed at trial. Applying the principles in Hay v O’Grady, the court held that evidence supported the trial judge’s findings, including that the agent had consulted Kilty and obtained instructions to put the property on the market. It declined to disturb those findings and dismissed the appeal.