The Court of Appeal has dismissed Dunnes Stores Unlimited Company’s appeal in a dispute over whether it was contractually required to fit out a store at Dublin’s Point Village development.
In an ex tempore judgment delivered on 28 January 2022, Mr Justice Noonan said the appeal concerned the meaning of a sentence defining “Fit Out Works” in the development agreement between Dunnes and Point Village Developments Limited (PVDL). The High Court had ruled for PVDL and made an order for specific performance against Dunnes. The Court of Appeal noted that the order was not subject to a stay and set a period for the works to be completed.
Dunnes argued that the words “may require to carry out” gave it discretion over whether to do any fit-out work. It said the clause would have used “must” or “shall” if the works were compulsory. Dunnes also relied on the absence of a “keep open” clause in its 250-year lease and said operating a retail store at the site was commercially non-viable at that time.
The Court of Appeal agreed with the High Court’s interpretation of the agreement as a whole. It held that Clause 1.38 allowed Dunnes flexibility over the nature and type of fit-out works, depending on the store configuration and business it chose to operate. It did not give Dunnes discretion to carry out no works at all.
The court also rejected the argument that the absence of a “keep open” covenant contradicted a mandatory fit-out obligation. It referred to the development agreement’s requirement that Dunnes commence trading by the store opening date, as modified by a settlement agreement: the opening requirement applied once at least seven ground-floor units had opened. The court said that requirement had been met, and that the specified events could not occur until the fit-out works were complete.
Mr Justice Noonan concluded that Dunnes had not shown any error in the High Court’s approach and dismissed the appeal. The judgment addresses the appeal; it does not set out a new completion deadline or further order beyond dismissing it.