Judgment: 2018-10-31 · Court archive

High Court awards €248,871 in damages after failed property sale

The court awarded three vendors damages after finding that a purchaser’s failure to complete led to a later resale at a lower price. It rejected their separate claim for property expenses.

High Court, Commercial · [2018] IEHC 617

Who, what, where, when and why

Who
  • Denis Kenny
  • Barry Cogan (Defendant)
  • Tom O’Regan
What

The court awarded three vendors damages after finding that a purchaser’s failure to complete led to a later resale at a lower price. It rejected their separate claim for property expenses.

Where

Places mentioned in the report

  • Block 20a, Beckett Way, Parkwest Business Park, Gallanstown, Dublin 12
  • Parkwest Business Park
  • Gallanstown
  • Dublin 12
When

Judgment:

Why

Reasons reported in the judgment

The agreed closing date was 17 June 2016. After Kenny did not complete, the vendors’ solicitors sent a completion notice to the purchaser’s solicitor, Tom O’Regan. Kenny argued that the notice was not properly served because it was not sent to him personally. The court rejected that defence, finding that service at the office of the solicitor representing the intended recipient was permitted under the contract and that O’Regan was Kenny’s solicitor for the transaction. The €74,000 deposit had been forfeited.

The High Court awarded three vendors €248,871.27 in damages after a purchaser failed to complete a €1.45 million property sale and the property was later sold to another buyer for €1.3 million.

Mr Justice Twomey’s judgment, delivered on 31 October 2018, concerned Block 20a, Beckett Way, Parkwest Business Park, Gallanstown, Dublin 12. The contract named Barry Cogan as purchaser but was signed by Denis Kenny. Kenny accepted that he was the purchaser and had not completed the sale.

The agreed closing date was 17 June 2016. After Kenny did not complete, the vendors’ solicitors sent a completion notice to the purchaser’s solicitor, Tom O’Regan. Kenny argued that the notice was not properly served because it was not sent to him personally. The court rejected that defence, finding that service at the office of the solicitor representing the intended recipient was permitted under the contract and that O’Regan was Kenny’s solicitor for the transaction. The €74,000 deposit had been forfeited.

The property was sold to Trinitymount Limited on 13 September 2017, about 15 months after the agreed closing date. Kenny argued that the vendors could not recover the resale shortfall because the resale fell outside the 12-month period mentioned in Condition 41(a) of the sale conditions. The court held that this did not remove the vendors’ right to claim damages under the general law. It also rejected Kenny’s assertion that the €1.3 million resale price was an undervalue, noting that he had provided no expert valuation evidence. The vendors’ auctioneer had said efforts to find a buyer at €1.45 million were unsuccessful.

The resale left a net shortfall of €76,000 after crediting the forfeited deposit. The court added €171,151.40 in interest, calculated at 10% on €1.376 million for the 454-day delay between the agreed and actual closing dates. It said the contract’s interest clause did not directly apply because Kenny never completed the sale; instead, the agreed 10% rate was an appropriate measure for damages in the circumstances. A separate 2% interest award of €1,719.87 was made on the shortfall for 413 days.

The vendors had also sought €14,415.22 for rates, insurance and service charges on a vacant floor during the delay. The court refused that claim, finding that awarding those expenses alongside the interest and benefit of rents would put the vendors in a better position than if the contract had been performed. The judgment awarded the shortfall and interest, but not the claimed property expenses.

Read the original court judgment

Something looks wrong?

Highlight the relevant passage or flag this article for review. Review requests do not immediately change the report.

Email a correction request

Request a review