The High Court has refused an application by three defendants to stop a kitchen contractor’s claim for damages over an oral agreement concerning a housing development, finding that the claim was distinct from earlier proceedings over the return of a deposit.
In a judgment delivered on 11 April 2019, Ms Justice Pilkington declined to direct a preliminary hearing under Order 25 of the Rules of the Superior Courts. She also refused the defendants’ request to dismiss the proceedings. The court found that neither res judicata nor the rule in Henderson v Henderson applied on the specific facts before it.
The dispute concerns an oral agreement made on 9 November 2006. The plaintiff, Bronagh Cotter trading as Katie’s Kitchens, says she agreed to design, supply and install kitchens and wardrobes in 30 houses being developed by the defendants in Kilcoole, Co Wicklow. She seeks specific performance or, alternatively, damages and other relief. The judge noted that the development had been completed, another contractor had installed the kitchens, and the houses had been sold. The itemised damages claim was just over €76,400.
Two of the current defendants had earlier sued Cotter in Wexford Circuit Court over the same agreement, seeking the return of a deposit. Judgment was entered in their favour in August 2007 for €14,238.90 plus €624 in costs. In October 2007, a judge allowed that judgment to be set aside on condition that €14,000 be lodged within three weeks. No money was lodged and no appeal was brought, so the judgment stood. Enforcement steps followed; an instalment order was later varied to €50 a week. Payments stopped in July 2010. The High Court judgment records an undertaking given in October 2018 that the remaining balance would be discharged.
The defendants argued that the Circuit Court proceedings had resolved the dispute or that Cotter should have raised her current claims there. Cotter submitted that the claims and issues differed, and pointed to the addition of a third defendant in the High Court case. The judge acknowledged that the current parties were not identical and that it would have been preferable for any relevant relief to have been pursued by counterclaim in the earlier case.
However, the earlier claim concerned recovery of the deposit, while Cotter’s present claim concerned alleged losses arising from steps she took under the agreement. The judge said the deposit judgment did not amount to rescission of the contract and treated the current claim as a separate cause of action. She also found the proposed preliminary issue unclear and considered a separate hearing could add costs without resolving the whole dispute.
The court directed that urgent steps be taken to expedite the case and that proper consideration be given to alternative dispute resolution. The judgment did not decide whether Cotter is entitled to damages; that claim remains for determination.