The High Court has ordered Keith Cooke to complete the purchase of an office unit in Pugin Court, Gorey, from Wynn Clons Development Limited by 31 October 2012. It rejected his claim that a strong diesel or kerosene smell made the unit unfit for use and dismissed his counterclaim for the return of his €33,000 deposit and other relief.
In a judgment delivered on 1 October 2012, Ms Justice Laffoy found it was impossible to conclude that the developer could not deliver Unit 12 in the condition required by the contract and building agreement. In particular, she could not find that a noxious smell made it unfit for people or unsuitable as an office on health and safety grounds.
Cooke had agreed in 2006 to buy the unit for €330,000 plus VAT. The contracts concerned Unit 12 only; the judge found the purchase was not conditional on acquiring car park space No. 6, despite later correspondence about a proposed €12,000 sale of that space.
As the parties prepared to complete the sale, Cooke’s representatives reported unfinished items and later raised a strong smell. An engineer retained by Cooke reported an odour during an inspection in March 2007, and an estate agent also recorded a chemical odour on visits in April. The developer’s experts and other unit owners did not report detecting an odour. The judge considered the evidence from both sides and concluded Cooke was not entitled to repudiate the agreements in April 2007.
The developer had sought specific performance or damages in lieu. The judge said there was no evidence to assess damages, and Cooke had not claimed he lacked the financial means to complete the purchase. She therefore ordered specific performance at this stage. She said a further hearing would be needed if Cooke sought to prove financial inability to complete, or if damages instead became the appropriate remedy and evidence was required to measure them. The judge also held that delay did not defeat the developer’s claim and that the €33,000 deposit had not been forfeited, despite an earlier letter stating it had been.
The order requires Cooke to complete the purchase in accordance with the contract for sale and building agreement by 31 October 2012. The counterclaim was dismissed.