Judgment: 2006-02-24 · Court archive

High Court dismisses apartment buyers’ claim against Smithfield Market developer

The court said the buyers had not established entitlement to relief, leaving unresolved whether a completion notice was effective and rejecting their concierge misrepresentation claim.

The High Court · [2006] IEHC 54

Who, what, where, when and why

Who
  • Laurette Hegarty
  • Joseph Hogan (Plaintiff)
  • Fusano Properties Limited (Defendant)
What

The court said the buyers had not established entitlement to relief, leaving unresolved whether a completion notice was effective and rejecting their concierge misrepresentation claim.

Where

Places mentioned in the report

  • Apartment 117
  • Dublin 7
  • Smithfield Market
When

Judgment:

Why

Reasons reported in the judgment

The High Court dismissed a claim by two purchasers of an apartment at Smithfield Market, Dublin 7, after finding they had not established entitlement to any of the reliefs they sought. The court did not decide whether the developer’s notice to complete was effective.

The High Court dismissed a claim by two purchasers of an apartment at Smithfield Market, Dublin 7, after finding they had not established entitlement to any of the reliefs they sought. The court did not decide whether the developer’s notice to complete was effective.

Laurette Hegarty and Joseph Hogan brought a special summons against Fusano Properties Limited concerning a contract dated 21 November 2002 for a third-floor apartment, now designated apartment 117, in Block A. The judgment does not state the purchase price in the contract; it notes that the £625,000 figure pleaded in the summons was an error and should have been €625,000.

The purchasers argued that a notice to complete served in May 2005 was invalid because the apartment and access to it were not reasonably habitable. Affidavits gave conflicting accounts of construction work and access around the building in May and June. The judge said that conflict could not be resolved because neither side sought to cross-examine the other’s deponent. The court also lacked the relevant General Conditions of Sale, which the notice invoked. It therefore could not determine whether the notice was effective, but said that this did not mean the notice was effective.

The purchasers also sought a reduction in the purchase price and service charge, alleging that a brochure misrepresented the concierge facilities. They said they understood that access to the apartment would be through the concierge facility and that they would receive its security and services. The developer’s evidence was that the development had a central concierge service for residents, alongside security arrangements including CCTV at block entrances and video entry facilities in apartments. The purchasers disputed some details of those arrangements.

The judge concluded that the brochure’s statement that the development would have a concierge did not represent that apartment 117 would be accessed through the concierge facility. The court found that the development had three concierge areas and that the brochure’s stated representation had been fulfilled. That was a complete answer to the alleged misrepresentation.

The judgment also noted that no evidence established a basis for reducing the service charge and that the purchasers’ estimate of the apartment’s lost value was not an adequate basis for compensation. The court dismissed the claim. It did not award the requested price or service-charge reductions.

Read the original court judgment

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