The High Court has refused an application by George Maloney, receiver and manager of John Fleming Construction Limited, to remove Ted O’Connor and Donal Dunne as trustees of lands in County Cork and obtain orders to vest the properties in the company or its nominee.
Mr Justice Max Barrett held that the agreed consideration for the 2003 land sale included a cash payment of about €4.3 million and a separate benefit linked to savings on stamp duty. The court found the parties had agreed to share that benefit equally, and that the sale would not have proceeded without it. The court treated the arrangement as one contract with two elements of consideration, rather than a separate collateral contract.
The stamp-duty benefit was initially to be met by building garages for the vendors, valued at €194,000 including VAT, according to a solicitor’s note made on the closing day, 25 April 2003. The garages were not built, apparently because of planning issues. The court said it appeared that the parties later agreed a cash equivalent of €200,000 would be payable, but O’Connor and Dunne had not received the benefit.
The judgment referred to contemporaneous solicitor notes and later correspondence supporting the equal split. The court also held that the 9 April 2003 sale contract, together with the purchaser’s solicitor’s closing-day note, provided a sufficient written record for the Statute of Frauds. The court said the note’s sign-off, “Ger”, was intended as a signature.
Maloney sought orders under the Trustee Act and registration legislation, including removing the vendors as trustees and vesting the lands in him or another person. The judgment records that O’Connor and Dunne were willing to perform their obligations if the outstanding consideration was met; Maloney, acting for the purchaser company, had declined to discharge it.
The court concluded that a party seeking equitable relief must be willing to perform its own contractual obligations. It refused all the orders sought. The judgment did not order payment of the outstanding benefit or determine a separate payment claim.