The High Court has ordered specific performance of a contract to sell Clonmel’s Show Ground for €3.9 million, finding the vendors remained bound to complete despite failing to obtain the consent of the Commissioners of Charitable Donations and Bequests for Ireland.
Mr Justice T.C. Smyth delivered judgment on 21 November 2007 in a claim by Mount Kennett Investment Company against Patrick O’Meara and others. The written contract was signed on 28 January 2005, with a €195,000 deposit and a closing date of 30 March 2005. It required the vendors to provide fee simple title without burdens or restrictive covenants. The contract did not make the sale to the plaintiff conditional on the Commissioners’ consent.
The vendors had agreed to buy the land from Clonmel Horse Show & Agricultural Society, a registered charity, and that purchase required the Commissioners’ consent. The vendors’ solicitor later told the plaintiff that consent had been refused and argued the contract had ended. The defendants also advanced a conditional-contract defence, which their counsel abandoned during the hearing.
The judge found the defendants had not secured consent by the closing date, but that this did not discharge their contractual obligation. He rejected frustration and impossibility of performance: the need for consent was known when the parties contracted, and the evidence indicated consent was probably obtainable if the Society received an adequate price. He found no credible evidence that the defendants had taken meaningful steps to secure it.
The court also considered later arrangements, made without prejudice to the litigation, under which the Society contracted to sell the freehold directly to the plaintiff for €6 million and the defendants contracted to sell their leasehold interests back to the Society for €3.2 million. The plaintiff was prepared to pay a further €500,000, but the defendants were unwilling to reduce their payment by that amount. The judge treated those arrangements as an attempt to mitigate the plaintiff’s loss and made no findings on the undisclosed date or circumstances in which the earlier Society-to-defendants contract had been annulled.
The judgment’s stated order is a decree for specific performance of the 28 January 2005 contract. It does not specify further terms of the decree in the supplied text.