The Court of Appeal has refused to award further damages to three sellers after finding they had not proved that a delayed resale of a Parkwest business property caused them a loss on their borrowing. The court confirmed a €76,000 award for the difference between the original and resale prices, after credit for the forfeited deposit, and proposed that each side bear its own costs in both courts.
The supplemental judgment, delivered by Mr Justice Haughton on 25 February 2021 with the agreement of Justices Murray and Collins, dealt with issues left open in the court’s principal judgment. The dispute concerned Block 20A, Beckett Way, Parkwest Business Park, Dublin 12. Denis Kenny agreed to buy it for €1.45 million in May 2016 but did not complete. The property was later resold for €1.3 million, with that sale completing on 13 September 2017.
The High Court had awarded the sellers €76,000, representing the €150,000 price shortfall less a €74,000 deposit, and €171,151.40 in damages calculated using 10% interest on the unpaid sale price during the 454 days before resale. In its principal judgment, the Court of Appeal rejected that method of calculating damages and directed the sellers to provide evidence of their actual loss, including relevant borrowing costs and rental income.
The court considered affidavits from seller Des Donegan, including a late second affidavit that the court considered provisionally after Kenny chose to proceed with the hearing rather than seek an adjournment. Donegan’s figures showed rent and service-charge receipts, loan interest, and other expenses for the relevant period. But the court said key bank statements and supporting records were missing. It also found no satisfactory explanation for €50,350 in payments to Donegan’s accountancy firm, listed as professional fees.
The court concluded that it could not be satisfied the sellers had incurred a deficit or were entitled to damages for actual borrowing interest. It refused to allow another adjournment to provide further evidence, citing earlier missed deadlines and the need to bring the matter to a close.
The court confirmed the €76,000 shortfall award and €1,719.87 in interest at 2% for the period from resale completion to the High Court judgment. It also confirmed the dismissal of Kenny’s counterclaim, with no order as to its costs. It vacated the High Court award of €248,871.27 in damages and replaced the 10% interest declaration with one recognising that actual borrowing interest could be recovered if proved; on the evidence, no such damages were awarded.
On costs, the court proposed setting aside the High Court order requiring Kenny to pay the sellers’ costs and making no order as to costs in either court. Either party could seek a different costs order within 14 days of electronic delivery of the supplemental judgment.